
Class JL-3-BS- 
Book _?jt S- 1— ^ 



dLf'.''.'/i^?rr<9^^^^ 




If 



THE CASE 



OF 



/ILIEN ENEMIES, 

CONSIDERED AND DECIDED 

UPOX A WRIT OF 

HABEAS CORPUS, 

ALLOWED ON THE 

PKi iriON OF CHARLES LOCKINGTON: 

AN ALIEN ENEMY. 

ny 

I HE HON. AVILLIAM TILGHMAN. 

Chief Justice of the Supreme Court of 
Pennsylvania, 

The 22d day ef November, 18i:. 



/42 



KEPORTED BY 

RICHARD BACHE, ESQ- 



PHILADELPHIA: 

PRINTED BY JOHN BINNS, NO. 70, CHESNUT-STREET. 

1813. 



V .* » '^ ^*2r- 






E35i 



<K\« /VA 



^ 



Diatrict of Pennsylvania^ to wit: 

iy,^^.^^i Be it REMEMBEiiED, That Oil the twenty- sixth dLvy 
VsEAL.'s of November, in the thirty eighth year of the independ- 
^^^.^■i>l ^j^^g ^f j,^g United Slates of Anieilcu, A. D. i813, 
RICHARD BACHE, of the said District, hath deposited in 
this office the ti'le of a Book, the riftht ^vhereof he claims as 
Proprietor, in the words following, to wit: "The Case of Ah«n 
« Enemies, considered and decided upon a Writ of Habeas Corpus, 
"allowed on the Petition of Charles Lockin-ton, an Aiien Enemy, 
« by the Hon. William Tilghman, Chief Justice of the Supreme 
'' Court of Pennsylvania, the twenty-second day of November, 1813. 
" Reported by Richard Bache, Esquire." 

In conformity to ihe Act of the Congress of the United States, 
intituled, « An act for the encouragement of learning, by securing 
the copies of maps, charts and books, to the authors and proprietors 
of such copies during the times therein mentioned." And also to the 
act, entitled '• An act supplementary to an act entitled " An act for 
the encouragement of learning, by securing the copies of maps, 
charts and books to the authors and proprietors of such copies du- 
ring the times therein mentioned," and extending the benefits therof 
to the arts of designing, engraving, and etching historical and other 

prints." 

D CALDWELL, 

Clerk of the Didrict of Pennsylvania, 



* • 



t« 



THE CASE 



OF 



ALIEN ENEMIES. 



1 
«> 



The Commonw ealth of Pennsylvania 1 

(on the relation of Charles Lockington) \ 
vs. 
Joseph Cohnman, Keeper of the Debtors' '' 

Apartment, in the Prison of the City 

and County of Philadelphia. ^ 

On the '12th of November, 1813, a Haleas Corpus was 
allowed by the honorable itiUiam Tilghman, Chief Justice of 
the Supreme Court of VennsylTaniaf commanding Joseph 
Cornmaiu the Keeper of the Debtors* Jlpartmentf in the pri- 
son of the City and County of Philadelphia, forthwith to 
bring before the Chief Justice, in the Court-room of the Su- 
preme Court, the body of Charles Lockington, and to return, 
with the writ, the cause of commitment and detention. The 
Haheas Corpus was allowed, upon the toUowing petition and 
affidavit. 

To the Honorable William Tilghman, Esquire, Chief Justice 
of the Supreme Court of Pennsylvania. 
The petition of Charles Lockington humbly sheweth, 
that he is confined in the debtors' apartment of the prison of 
the city and county of Philadelphia, and restrained of his 
liberty, not for any criminal matter, but under color and pre- 
tence of a warrant from John Smith, 3Iarshal of the United 
States for the district of Pennsylvania, of which a copy is 



C 4 ] 

hereunto annexed. Your petitioner humbly prajs tlKvt a Ii((- 
heas corpus may be aAvardcd by your honor, directed to Jo- 
seph Cornman, keeper of the debtors' apartment, returnable 
before your honor at such time as your honor may appoint. 
And that your honor Avill examine tlie facts relatinsj to the 
cause, and into the cause of your petitioners' confinement 
and restraint. And tbcreupon cither bail, remand or dis> 
charge him, as to justice shall appertain. 

(Signed) CHAKLES LOCKEaGTON. 

Robert Kid, of the city of Pbiladelphia, being duly sworn, 
deposeth and saith, that Charles Lockington is actually con- 
fined and restrained in the debtors' apartment of the prison 
of the city and county of Philadelphia, to the best of this de- 
ponent's knowledge or belief, not by virtue of any connnitment 
or detainer, for any criminal or supposed criminal matter, 
but under color and pretence of the warrant from John Smith, 
of which a copy is hereto annexed. 

* (Signed) ROBERT KID. 

Sworn, the lltli day of November, 1813, before me, 

(Signed) JACOB BaKER, Mderman. 



United States, ? ^^ 
Pennsylvania District, 5 



Charles Lockington, an alien enemy, having vi(;lated 
the rules prescribed for his government, you are, therefore, 
charged to receive his body, and him safely keep, until dis- 
charged by law. 

Given under my hand and seal, this 9th day of Novem- 
ber, 1813. 

(Signed) JOHN SMITH, Marshal. 

To the Keeper of the BeMors^ Apartment, 

I hereby certify the above to be a true copy of the Mar- 
shal's commitment. 

(Signed) JOSEPH CORNMAN, 

Keeper of the Debtors' ^3parlment, 



[ 5 J 

Let a Habeas Corpus be issued, rcluvnable inimediately. 
Hearing to be in the ('ourt-rooin of the Supreme Court, to 
uiorrovv morning, at ten o'clock. 

(Signed) WILLIAM TILGHMAN. 

Nov. 12, 1 SI 3. 
To the Prothonoiary of the Sujireme Court 
for the eastern district. 

The writ of Tlaheas Corjms, being returned on the loth 
of November, with tlie Marshal's order, specifying the cause 
of conin)i(mcnt and detention, the Chief Justice postponed the 
liearing of the case until Monday the 15th of November, to 
afford the I^larslial an opportunity for preparation. 

On the 16th of November, Mr. Dallas, the Attorney of 
(lie United States, for Pciinsulvania, filed the following sug- 
gestion, on behalf of the Marshal : 



The Commonwealth of Pennsylvania"^ 

71S. \ 

Joseph Coknm an, Keeper of the Debtors' ^Hahcas Corpus. 
Apai'tnieiit of Ihe Prison of the City and J 
Counly of Philadelpliia. J 



In the Matter of Charles Locldngton. 

And noAV, to wit, this fifteenth day of November, in the 
year one thousand eight hundred and tliirteen, into the Court- 
room of the Supreme Court, for tlie Eastern District of Penn- 
sylvania, before the honorable William Tilghnian, Chief Jus- 
tice of the Supreme Court of Pennsylvania, comes John Smith, 
Marshal ef the District of Pennsylvania, in his proper person, 
and respectfully gives his honor here to understand and be 
informed. That, on the eighteenth day of June, in the year one 
thousand eight hundred and twelve, an act of Congress was 
passed, declaring war between the United States of America, 
and their territories, and the United Kingdom of Great Bri- 



■[ 6 ] 

tarn and Ireland and the dependencies thereof; that on the 
nineteenth day of June, one tljousand eight hundred and 
twelve, the President of the United States of America, made 
public proclamation of the event ; and that tliereupon all na- 
tives, citizens, denizens and subjects of the King of tlie United 
Kingdom of Great Britain and Ireland, being males of the 
age of fourteen years and jipwards, who were within tlie 
United States, and not actually naturalized, were liable to be 
apprehended, restjaincd, secured, and removed, as alien ene- 
mies. Tifat the President of the United States, on the event 
of the said war, was authorized, by his proclamation thereof, 
or other public act, to direct the conduct to be observed, on 
the part of the United States, towards the aliens, who should 
become liable to be apprehended, restrained, secured, and re- 
moved, as aforesaid; the manner and degree of the restraint 
to which they should be subjected; and in what cases, and 
upon what security, their residence should be permitted; and 
to provide for the removal of those who, not being permitted 
to reside within the United States, sliould refuse or negiei I to 
depart therefrom ; and to establish any other regulations 
which sljould be found necessary in the premises, and for 
the public saicty. 

That the President of tl?e United States, in the due exe- 
cution of his authority aforesaid, did, among other things, 
direct and require, by his public notice, issued from the 
Department of State, on the seventh day of July, in the 
year one thousand eight hundred and twelve, that " all Bri- 
tish subjects, within the United States, should forthwith 
report to the Marshals (or to the persons to be appointe<l 
by them) of the respective States or territories within which 
they may reside, their names, their age, the time they 
have been in the United States, the persons composing their 
families, the places of their residence, and their occupations 
or pursuits ; and whether, and at what time, they have made 
the application to the courts, required by law, as preparatory 
to their naturalization. And the Marshals respectively are 
to make to the Department of State returns of all such Bri- 



( 7 ) 
tisli subjects, with the above cireumstancps annexed to tlieii' 



names." 



That the President of the United States, in the due ex- 
ercise of his authoriiy aforesaid, did further, amoi7g other 
things, direct atid reqnire, hy his notice, issued from the 
Department of btate on the sixth day of Febrnary, \n the year 
of our Lord one thonsand eight hundred and thirteen, ** that 
alien enemies, arriving Avithin the limits of the United States, 
from foreign countries, shouhl, immediately on their arrival, 
report themselves to theMarslial of the United States, or to 
his deputy, for the district within Avhich tliey may be landed. 
No alien enemy can hereafter proceed from a port or place 
within one district of the United States to a port or place 
within another district of the same, by land or water, with- 
out a special passport from the Marslial or from the Collector 
of the customs, as the case may be. Alien enemies of the 
United States permitted to travel from one district of the 
United States to another thereof, are forthwith, on their ar- 
rival, to report themselves to the Marshal, to whom they are 
to exhibit their passports. Tiie Marshals and Collectors of 
the customs of the several districts of the United States 
are particularly charged with the execution of the provisions 
of this notification." 

That the President, of the Ignited States, in the due execu- 
tion of his authoritv aforesaid, did,amona;other thing's, further 
direct and require by his notice issued fiom the Department of 
State, on the twenty third day of February, in the year one 
thousand eight lumdred and thirteen, that, " Alien enemies, 
residing or being within forty miles of tide water, should 
forthwith apply to the Marshals of the States or territories, 
in wl'icli they respectively are, forp;;ssportsto retire to such 
places, beyond that distance from tide water, as might be de- 
signated by the Marshals. This regulation, however, is not 
to be put in force, without special notice, against such alien 
enemies, not enj^aged in commerce, as were settiod, previous- 
ly to the declaration of w ar, in their present abodv , or are then 
pursuing some regular and lawful occupation, unconnected 
with commerce, and who obtain, monthly, from the Marshal 



C 8 ) 

©f tJic (lislrlct. ill ^vlik'.li tlipy reside, pci'missioii to rcinaui 
where lliev are." 

And it was, aiiionj;* other tliini^s, ^expressly gjvon ia 
eiiarge, to the ?,larshals, by tlie Secretary of State aef- 
ing under the authority of the Prosident of the United 
States, as part of the rej,^uhit ions estahlisiied by tlie President 
of the United States, Mbieh were found necessary in the pre- 
mises and for the public safety, that << all those alien enemies, 
to whom the said notice had reference, engaged in eomnieree, 
who did not immediately conform to the re4}uisition, nve to 
be taken into custody, and conveyed to the plaees assigned to 
them, unless special circumstances required indulgence f— 
that '« the regulations, concerning aliens, established in con- 
formity with the said notice, should be enforced; that the per- 
sons designated for removal should immediately repair to the 
places assigned taem for residence ; and that an accurate re- 
port should be made, of the places of residence, assigned to 
each alien, with a description of his person." 

And the said John Smith, Marshid of the district 
nf Pennsylvania as aforesaid, further respectfully gives 
the honora])le Chief Justice here to understand and he 
informed, that Chailes Lockington, the petitioner, on whose 
behalf the present writ of Habeas Corpus is issued, was, 
at the time of the said declaration of war, a subject of 
the said King of the United Kingdom of Great Britain 
and Ireland, of the age of twenty years and upwards, 
residing within the United States, to wit, in the city of 
Philadelphia, and district of Pennsylvania aforesaid, within 
forty miles of tide water, and was not, at the time of the said 
declaration of war, nor has he, at any time since, been actual- 
ly naturalized : that the said Charles Lockington was, at the 
time of the said declaration of war, and has continued ever 
sine^, an alien enemy of the said United States, engaged in, 
and connected with, commerce ; that the said Charles Lock- 
ington on the 18th day of July, one thousand eight hundred 
and twelve, reported himself to the Marshal of the district 
of Pennsylvania, as an alien and British subject; and on the 
13th of March, ISIS, the said Charles Lockington applied, 



C 9 ] 

as an alien enemy, tn (l:e said Jolin Smitli, Marshal of the said 
dish-ict of Peniisvivania, as aforesaiil, for a passport to retire 
to L-uieaster, which, upon the application and request of the 
said Charles Lockin,^lon, was afterwards changed to Reading, 
in tlie said district of Pennsylvania, a place beyond forty miles 
from tide water, designated by the said John Smith, IMarshal 
as aforesaid, for the place of the said Charles Lockington's 
retirement : tliat on the ninth day of November, one thousand 
ei;4;ht hundred and thirteen, tlie said John Smith, Marshal, as 
afoi'esaid, found the said Chailes Lockington in the city of 
Piilladelpliia, ar')i'esaid, contrary to the form, and in violation, 
of the terms of the notices, regulations, and passports, in such 
ease made, established and granted as aforesaid : that the said 
John Smith, Marshal, as aforesaid, thereupon directed and 
required the said Charles Loekington to retire to Reading, 
aforesaid, the place designated by the said John Smith, Mar- 
shal, as aforesaid, for such retirement as aforesaid ; but the 
said Charles Loekington neglected and refused so to do : that 
thereupon the said Jolin Smith, Marshal, as aforesaid, acting 
under the authority of the Constitution and law s of the United 
Htates, and in obedience to the regulations by the President 
of tlie United States in such ease established, as necessary in 
tlie premises, and for the public safety, as aforesaid, took the 
said diaries Lockington into his custody, and placed the said 
Charles Lockington, for safe keeping, in the debtor's apart= 
n.ent of the prison of the city and county of Philadelphia (no 
special circumstances in the case requiring indulgence) until 
the said Charles Lockington could be conveyed, or would, vo- 
luntarily, consent, to retire to Reading, as aforesaid, or until 
fhe said Charles Lockington was otherwise discharged accord- 
ing to law : that the said debtor's apartment in the prison of 
the city and county of Philadelphia was, and is, a convenient, 
usual, and lawful place of confinement, for persons taken into 
custody, by the Marshal of the district of Pennsylvania, under 
the authority of the United States : And that the said Charles 
Lockington, being an alien enemy, concerned in and connected 
with commerce as aforesaid, is in the custody of the said John 

Smith, Marshal, as aforesaid, in manner aforesaid, for the 

B 



C 10 3 

cause and purpose aforesaid ; of whirh duo connnunicHtion 
has been made to the President of the United Slutes. 

And the said Jolin Sniitli, IMarshal as aforesaid, eoniplains 
against the said Charh's Loekint^ton, being an alien enemy as 
aforesaid, tliat when the said Cliarles Ijoekington was taken 
into Iiis custody as aforesaid, the said Chark^s Loekington was 
resident and at large within the dish'iet of Pennsylvania, to 
the danger of the public peace and safety (as the said John 
Smith, 31arshal as aforesaid, has been iiifornied and believes) 
and contrary to the tenor and intent of the notices and regula- 
tions, which the President of the United States has prouuilg- 
cd and established in the premises. 

And the said John Sinith, Mai'shal, as aforesaid, respect- 
fully excepts to the Jurisdiction of the honoiable Chief Jus- 
tice of Pennsylvania, in the premises, and pi'ays that tlie 
said Chief Justice will not take cognizance of tbe case, nor 
dischaige the said Chai'les Lockington from his custody 
aforesaid ; submitting, with due dcfei'ence, to the considera- 
tion and decision of the honorable Chief Justice, the follow- 
ing reaso!is for this his excep(ion : 

1. Because, by the Constitution of the United States, 
Congress possesses, exclusively, the power »• to declare war, 
grant letters of marque and reprisal, and make rules con- 
cerning captures on land and water." 

2. Because, by the strict pi'inciple of the law of nations, 
tlie citizens or subjects of the enemy, residing within the 
United States at the time of the declaration of hostilities, 
against the United Kingdom of Great Britain and Ireland, 
Avere liable to be made prisoners of war. The strict prin- 
ciple of the law, has been lil)erally and honorably relaxed, 
in modern times, through the medium of treaties, of statutes, 
and of proclamations ; but the power to relax the principle 
is connected, inseparably, with the power to enforce it j or, 
in other words, with the poAver to declare war. 

3. Because the acts of Congress have stated, and limit- 
ed the iudulgeuecs to he shewn to alien enemies, and haye 
assigned, to the federal and state authorities, such portions 
of jurisdiction on the subject, as public policy and private 



( 11 ) 

justice were deemed to require. So far, therefore, as Con- 
gress have empowered the lionorahle Chief Justice to tak« 
cognizance of the case of an alien enemy, in the actual cus- 
tody of the Marslial of the district of Pennsylvania, under 
the authority herein before set forth, and no further, a ju- 
risdiction may he sustained, on the present occasion. 

4. Because the acts of Congress have not authorised a 
sm^?e judge or justice, of a state, to take cognizance of the 
case of an alien enemy, for the purpose of apprehending an 
alien enemy ; examining and hearing any complaint against 
him ; ordering him to be removed out of the territory of the 
United States, or to give sureties of his good behaviour, or 
to he otherwise restrained, conformably to the proclamation, 
or other regulations, which the President of the United States 
has established in the premises, nor for any other purpose 
whatsoever : that the acts of Congress have, for certain 
specific purposes, vested a jurisdiction in the several courts 
of the United States, and of each State, having criminal 
jurisdiction, and in the several judges and justices of the 
courts of the United States ; but such jurisdiction is only 
vested upon complaint against an alien enemy, who shall be 
resident and at large, to the danger of the public peace or 
safety, and contrary to the tenor or Intent of the President*s 
proclamation and regulations. 

5. Because tiie acts of Congress have not authorised any 
federal or state court, nor any federal or state judge, or jus- 
tice, to discharge an alien enemy from the custody of the 
IMarshal, or from any restraint, to which he has been sub- 
jected by the regulations, directions, and orders, of the Pre- 
sident of the United States, established and issued in due 
form of law. 

6. Because the honorable Chief Justice cannot derive, 
nor exercise, a jurisdiction, in the case of an alien enemy, 
under the constitution and laws of the state of Pennsylvania, 
if such jurisdiction is, in any wise, contrary to the constitu- 
tion and laws of the United States, made in pursuance 
thereof. 

7. Because, more especially, the Habeas Corpus act of 
the state of Pennsylania does not, and could not, authorise 



C 12 3 

the diseliarge of an alien encmj, taken into ilie ensloily ot 
the Marslial of (he district of Pennsylvania, aeting under 
the directions, orders, and reguhitions, of the President ol* the 
United States, in the present ease, any more tlian in the 
ease of every prisoner of Avar, taken in battle, and, in like 
manner, assigned to the custody of the said Marslial. 

8. Because, as well the said declaralion of war by Con- 
gress, and the said proclamation, notices, and regulations, of 
the President of the United States, touching the declaration 
of war, and the goverment of alien enemies, as the proceed- 
ings of the said John Smith, Marshal, as aforesaid, in grant- 
ing a passport to the said Charles Lockington, and in taking 
the said Charles Lockington into custody as aforesaid, were 
acts done under the authority of the Constitution and laws of 
the United States, and are cognizable by the courts, judges, 
aad justices, of the United States, and not by the courts, 
judges, and justices, of the state of Pennsylvania. 

And the said John Smith, Marshal as aforesaid, (stat- 
ing, that under the authoiity of his instructions from the 
President of the United States, he is ready and desirous to 
remove the said Charles Lockington to Heading aforesaid, 
and that he is ready and willing to release the said Charles 
Lockington fi'ora custody, in the said debtor's apartment, of 
the prison of the city and county of Philadelphia, on condi- 
tion that tlie said Charles liOcJ^ington shall, forthwith, re- 
tire to Reading aforesaid, in conformity to his duty as an 
alien enemy) respectfully prays, that the suggestion and rea- 
sons herein set forth, may be annexed to, and taken as part 
of, the return to the said writ of Habeas Corpus ; and that 
the said Charles Lockington may be remanded into his cus- 
tody, for the cause, and for the purposes aforesaid ; — the pub- 
lic danger of an illicit intercourse with the fleets and armies 
of the enemy, (blockading the harbors, and menacing the 
territory, of the United States) daily increasing. 

(Signed) JOHN SMITH, Marshal, 

Of the District of Pennsylvania.- 

Sworn to EehirUf 18 JN'^or. 1813. 
Joseph Barnes. 



L i^ 



J 



Mr. JhiUas ihan proccetled to sliow, that the several no- 
liccs, issued fsom the Department of State, relative to alien en- 
emies, as set forth in tl)e Suggestion, were duly published in 
(he Dcmocraiic Press, under the dates of the 10th and 22d of 
July, the 13th. 22d, and 29th of October, 1812 ; the 11th ot 
Fel)ruary, the 3d of March, and the 31st of May, 1813. He, 
also, produced the instructions, which the Marshal had receiv- 
ed, for carrying the President's regulations into clfeet, either 
from the Secretary of State, or from the Commissary General 
for prisoners of war, including the superintendency of alien 
enemies, so far as it was necessary and proper to make the in- 
structions public, on the present occasion. As the Chief Jus- 
tice, in delivering his opinion, adverted to the important parts 
of the evidence, a statement of them here would be superflu- 
ous. On behalf of the prisoner, Rohert Kid, was examined, 
as a witness, to prove Lockingtoiis want of pecuniaiy funds ; 
his willingness to retire to Reading, if his expenees were paid ; 
and his desire to return to his own country* An extract 
from a letter written to him by Mr- Barclay, the British 
agent for prisoners of war, dated the 16th of June, 1813, 
was, also, read, stating that " he had done all in his pow- 
er, to o!)(ain tlte consent of this government, and for leave 
to take up two ships, for the purpose of removing British sub- 
jects, who were desirous of returning to England ', but that 
the Secretary of State in his last letter on the subject, inform- 
ed him. that the President would not, at least for the present, 
consent that the British subjects, now in the States, should be 
permitted to leave them, or even return to their former resi- 
dence within the States." 

Mr. Hare, in support of a motion, to discharge the priso- 
ner, entered into an extensive political discussion ; to which 
Mr. Dallas deemed it his duty to make some reply ; but, ex- 
eluding from this report all extraneous matter, it is sufficient 
to state, that Mr. Hare endeavoured to maintain the following 
propositions : 

1. That alien enemies residing in the United States, on 
the declaration of war, were not, in any sense, to be regarded 
as prisoners of war ; that, independent of the act of Congress, 
they were under the protection of the law of nations, which 
had not^ at any period of time, authorised their being treated 



[ 1* c 

ats prisoners of war ; tliat without any express license, or safe 
conduct, such alien enemies, were, by the fair implication of 
the law of nations, protected in their persons, their liberty, 
and their effects : and that recent decisions of the Supreme 
Court of the state of New York, had even pronounced, that 
alien enemies, residing here, at the declaration of war, ami 
permit led by the government to remain in the United States, 
were in a capacity to institute and maintain suits at law. 2 
Inst. 57, Magna Chartu, C, 30. Vuttel B. 3, c. *, § 65. 10 
^Tohns.Ecp. 69, ±17. 

2. That the Act of Congress, passed the 6th of July 1798 
(4 vol. 1(50) respecting alien enemies, gave to the President, 
a^I the power, that he could exercise, in relation to them ; and 
tliat the power must be exercised in the manner directed by 
the law : whereas his power, in relation to prisoners of war, 
is derived from his Constitutional capacity of Commander in 
Chief of the army and navy of the United States ; and is only 
limited and regulated {)y the law of war, according to the law 
ofcivilizetl nations. 

3. That the Act of Congress declares, that on the break, 
jHg out of a war, " all natives, citizens, and denizens, or sub- 
jects, of the hostile nation, or government, being males of the 
age of fourteen years, or upwards, who shall be within the U- 
iiited States, and not actually naturalized, shall be liable to be 
appreliended, restrained, secured and removed, as alien ene- 
mies :" but the liability must not be regarded as subjecting 
such alien enemies to be made prisoners, for the purpose of 
confinement within the United States, but only as subjecting 
tiiem to be apprehended, restrained and secured, for the pur- 
pi>sc of being removed from the United States ^ a removal so- 
licited, in the present case, by the petitioner, as well as many 
ether British subjects. Resident alien enemies had a right, 
by the law of nations, to withdraw from the country after a 
declaration of war ; and to refuse them the enjoyment of that 
right would render the American Government as odious as the 
Government of jyapolean, who had seized on every British 
subject, and confined them in the interior of France. 

4. That the first section of the Act of Congress authori- 
zes the President, in the event of war, " by his Proclamation 



t 15 ] 

thereof, or other pnhlic aet, to direct the conduct to he ob- 
served, on the part of the United States lOAvards the aliens^ 
ulio shall heconie liable to he apprehended, restrained, seeui'- 
cd, and removed, as alien enemies:" hat there must he a pub- 
lic act, and it must he the act of the President himself : where- 
as in the present case, the notices, or acts, do not appear to he 
public ; when dated from *' the Dejmrtmcnt of Slate,*' they 
arc not under seal ; they are not signed by the President, nor 
by the Secretary of State, nor is the authority of the President 
mentioned in them ; when dated from " the Ojjlce of the Coin- 
mit^sary General of Priaoners," though they are signed bj 
** John Mason" there is nothing to shew his authority to an- 
nounce the acts of the President; and if the notices, or acts, 
thus informally published, should even be regarded as acts of 
the Secretary of State, or of the Commissary General of pri- 
soners, which the President allowed them to perform ; yet 
they cannot be deemed valid, or legal, to affect the alien ene- 
mies, as the President's power, under the Act of Congress, 
was strictly personal ; Avas not susceptible of a transfer ; and 
could not be exercised by any substitute, or deputy* 

5. That the Aet of Congress gives no authority to the 
PiHisident, to employ the agency of the Marshal, for taking 
any alien enemy into custody, except in the single ease, desig- 
nated in the third section ; to wit, the removal of an aliea 
enemy, who had been'required by the President to depart, out 
of the territory of the United States; and for such removal, 
it is declared, that the Marshal shall have the President's 
warrant. 

6. That the second section of the Aet of Congress, makes 
tlie provision, for carrying into effect, the public acts and reg- 
ulations of the President, performed and established by virtue 
of the first section, in relation to alien enemies, upon a resoi-t 
to the judicial authority, and not by a summary course of ex- 
ecutive proceedings. The President could nat authorise the 
Marshal to apprehend, restrain, or secure, an alien enemy with- 
in the jurisdiction of the United States ; and consequently the 
Marshal s arrest and commitment in the present case, are acts 
of usurpation, unconstitutional, tortious, and void. Even if 



C 16 ] 

all the otiier objections to tlie iinprlsmmient of Loc^iliiiston 
were oveirukd, it MOui<l be sufiieicnt to entitle him to a dis- 
charge, tijat he has not been counoitted by a Court, or Judge, 
or Justiee, (sufficient cause therefor appearing) after a com- 
plaint, warrant, and full examination and hearing, according 
to tlie positive directions of the second section of the Act of 
Congress, 4 Vol. 160, §. 2. 

7. Tlmt the Chief Justiee has complete Jurisdiction in the 
case of an alien enemy, as well as of a citizen, to issue a Ha- 
heas Corpus, and to discharge him from an unlawful or ir- 
regular imprisonment, even under colour of authorisy from 
the United States. But, in the present case, there is not that 
colour to maintain the Marshal's arrest and commitment. 
The magnanimity of the Judges of the Supreme Court of New- 
York, in issuing a writ o^ Habeas Corpus, directed to Major* 
General Lewis, in the case of a citizen, seized by a military 
force, upon a suspicion of treason ; and in awarding an t.11- 
tachment for an insufficient return ; ought to lie imitated by 
every Court, and Judge of United States. 10 Johns. Jlep. 328. 
In the case of the Commonwealth vs. the Marshal of the dis- 
trict (the memorable Ghnslcad case) the Chief Justice !;ud 
himself, also, decided the law. On the return to the Habeas 
Corpus, in ths present ease, nothingjudieially appears, but an 
arbitrary assumption of power, by a ministerial ofiicer of t'le 
Government, to arrest and imprison an alien enemy, residing 
in the country, under the protection of the law ofnutions, and 
the Act of Congress. 

Mr. Dallas, in answer to Mr, Hare, observed, that the 
^Marshal's Suggestion was imcontradieted, in point of fact j 
and that, in point of law, its general principles were incontro- 
vertible. In the argument of the adverse counsel, as well as 
in popular opinion, there existed much misapprehension and 
error .• but a little candor and rellection, would dispel the illu- 
sion He, tlicrefoie, ventured, for the sake of the public, as 
well as for the sake of the precedent, about to be established 
to pursue the following course of reasoning. 



L i7 3 

1. That the sti'iet iJiineiplc ol* the ancient law of na- 
tions subjected aSieii enemies, residing in a belligerent ceunr 
try, at the breakin*^ out of a war, to be treated as prisoners 
of war, is a point, in Islstory and inrisprudence, so plain, that 
it would be a wa^le of time to prove it, by the authority of 
the Avritcrs on Fubiie Law, or of the Historians of the ci- 
vilized world. Magna C/tarfft, and Vattel, cited with a view 
to destroy the position, will, when correctly understood, 
serve to maintain it. But, it is agreed, that, in modern 
times, the strict principle of the law, has been liberally 
and honorably relaxed ,• and it is enough, for the present 
discusion, to consider the state and operation of the mo- 
dern law : For, in no country is the modern law, recogniz- 
ed with more gei»erosify, or enforced with less rigor, than 
in the United States ; where alien enemies are entitled to 
every protection, privilege, and security, of the law of trea- 
ties, and of the law of nations, enforced by the legislative 
authority of the union. 

ii. Tirat in favor of resident alien enemies, the act of 
Congress, thus expressly provides, that all " who are not 
" chargeable with actual hostility, or other crime, against 
** the public safety, shall be allowed for the recovery, dispo- 
*< sal and removal of their goods and effects, and for their de- 
** parture, the full time, which is, or shall be, stipulated, by 
*• any treaty between the United States, and the hostile na- 
" tion, or government, of which they shall be natives, citi- 
*' zens, denizens, or subjects : And where no such treaty 
" shall have existed, the President of the United States may as- 
*< certain and declare such reasonable timCy as may be consis- 
« tent with the public safety^ and according to the dictates of 
*' humanity and national hospitality" (Act of 6 July 1798. 
4 Vol. 160. s. 1. Act of the 6th of July 1812, 11 Vol. 303.) 
Again, " The President of the United States is authorised to 
« give, at any time within six months after the passage of 
" the act, passports, /oi* the safe transportation of any Ship, 
'' or other property, belonging to British subjects, and which 
" is now within the limits of the United States," (Act of the 
6th of July 1812. 11 Vol. 302. ij. 6. 

C 



C 18 3 

3. That in ihc execution of the trust, <l:iis reposed in the 
rresident of the United States, his personal liherality has 
been amply displayed. Resident alien enemies were permit- 
ted freely to Avithdraw from the country, by land and by wa- 
ter, with their effects, for a period considerably exceeding 
six niontlis ; and the facility o£ cartels, and other conveyances, 
was affoi-ded on almost every application. From the de- 
claration of war, on the 18th of June 1812, until the issuing 
of the public notice, on the 23d of February 1813, requiring 
them to retire to a distance of forty miles, from the tide wa- 
ter, resident alien enemies were subjected to no other res- 
traints, than that of reporting their names to the Marshal, 
under the public notice of the 7th of July 1812; and that of 
obtaining a pasport from the IMarshal, under the public no- 
tice of the 6th of February 1813, in the case of travelling 
from a city or town in one district, to a city or town in another 
di<»lrict. Even alien enemies voluntarily arriving in the coun- 
tiy since the declaration of war, and, consequently, under no 
express or implied safe-conduct or promise of protection, had 
been subjected to no other restraints, than that of reporting 
their names, and that of retiring to a distance of 30 miles 
from tide-water, under the public notice of the 13th of Octo- 
ber 1812. Thus, it appears, that neither the law in itself, 
nor the manner of carrying the law into effect, can be re- 
proached with unnecessary rigor, or with the slightest de- 
parture from " tlie dictates of humanity and national hospi- 
taliiy.*' The conduct of the Emperor Js'apolcon has been 
condemned, not for the removal of British subjects into the 
interior of France, at a distance from his camps and his arse- 
nals ; but for seizing and confining, indiscriminately, every 
British subject, found within his dominions, on the rupture of 
the peace of Amiens, without allowing them a reasonable 
time to withdraw, upon the faith of treaties, or the obliga- 
tions of public law. The conduct of Great Britain towards 
Americans in England (even if it has been truly represented, 
o# if her laws, in tlie case of aliens generally, could be for- 
gotten) can afford no example tor the United States ; w hose 
Larbouis arc blockaded ; whose territory is open to invasion 



C 19 ] 

Oil all sides ; and whose mortifying experience, lias taught Che 
necessity of guarding against every possible comniunication, 
Avith the fleets and armies of the enemy. But if the conjluct 
of the American governuient is to be tested by the conduct of 
others, her triumph will be great indeed, on appealing to the 
only applicable standard of comparison, — the proceedings of 
the governors of the Canadas and of JS^ova Scotia, towards 
American citizens, found within the British territory, on the 
declaration of war, or since captured in battle, or in com- 
merce. 

*. That neither the faith of treaties, nor the law of nations, 
requires more from a belligerent power, than that resident 
alien enemies should be allowed a reasonable time, to with- 
draw from the country, after the declaration of war. If they 
do not withdraw in a reasonable time, they have made their 
election to remain; and, without giving them just cause of com- 
plaint, tliey may be subjected to every restraint, which the 
public safety shall render it expedient to impose. The permis- 
sion to remain, does, indeed, imply, upon the dictates of huma- 
nity, that they shall be secure in their persons and effects ; and 
even (as far as the authority of the New York decisions can 
legitimately extend) that they may maintain suits at law : 
but a privilege by implication, can never be established, in 
opposition to an expr«s» and positive negation of the privilege | 
or, in other words, a safe-conduct, either express or implied^ 
must be enjoyed upon the precise terms and conditions, which 
the sovereign, allowing it, has recognized or prescribed. Vat- 
tel, B. 3. c. 17. s. 269. 273. 274. 276. If, therefore, the Acts 
of Congress, and the authorised public acts of the President, 
have declared and qualified the privileges of alien enemies, 
the alien enemies cannot, by implication, from a tacit permis- 
sion to remain within the United States, acquire, or enjoy, any 
right, inconsistent with what Congress, and the President, have 
ordained upon the subject. The reasonable time, for volunta- 
rily withdrawing from the country, allowed to alien enemies, 
having expired, the demands of humanity, hospitality, and 
justice are satisfied; and the time, the place, or the manner, of 
withdrawing, or of being removed, as well as every other spe- 



C -0 J 

cies of restraint, upon the Avill and tlie eontliiet of alien ene- 
mies, must a^ter^vards depend ujion the American fi;(iYernnient, 
acting with a \iew to the policy, the interest, and the safety of 
the people committed to its care. Tlse refusal, therefore, to 
allow Mr. Burcluy to take up two vessels (as mentioned in his 
letter of the 16th of June, 1813). for the transportation of 
British subjects, from the poi'fs of the United States, directly 
to the British dominions, can afford no ground of reproach , 
and does not, by any means, prove a gencittl refusal, to pernsit 
alien enemies to depart ; but only a refusal, with i*eferenee to 
a particular application, at a particular time, and under pe- 
culiar circumstances. Armies were then formed on our nor- 
thern frontier : squadrons were then stationed along the line 
of the Atlantic coast : and, after all, is it reasonable, could it 
be safe, was such a privilege ever before expected, or allowed, 
that alien enemies, who have made an election to remain, for 
eighteen mouths, in the country, after tlie declaration of war, 
should be licensed, at will and pleasure, iadividually, or in 
bodies, to pass into Cajtarfa, or J\^ova Scofia; to go on board 
of the British squadrons on our coast, in our bays, and in our 
rivers ^ or to proceed, fraught with all the dangerous infor- 
mation, which they have collected, directly from an Ameiican, 
to an English port ? The suspension of all amicable inter- 
course with the enemy, and his dominions, is an immediate 
and necessary consequence of the war; but the adverse doc- 
trine would destroy all the policy and advantages of that sus- 
pension ; and the enemy in Cliiehcc, and in London, would be- 
come as familiar with our means of offensive or defensive war, 
as he is, on board of the blockading squadrons, with the re- 
freshments of our market, and the intelligence of our press. 
No: the privilege now claimed, cannot be derived from any 
principle of the law of nations ; and Congress have effectually 
limited the power of the President himself, in the allowance 
of the privilege of departure, by declaring, as to the. persovs 
of resident alien enemies, that the time allowed, for their 
withdrawing from the country, after the declaration of war, 
shall be " such reasonable time as may he consistent with the 
public safely, and according to the dictates of humanity 



[ 21 ] 

and ualional policy :" (* vol. 160. s. 1.) v.lsije, with iM^spect 
to the ships or other properiij, oi' i-csidenl itiien eneniies, his 
uiithoi'lty to gs'iint passports, ioi- safe transportutioti, was ex- 
piTssly eonfinet! to a pei'iod of six mouths, fioai t!ic 6th day 
of July, 1812. (II vol. 302. s. 0.) 

Mr. Tia\las, liaving' taken these general view s of the mat- 
ter brought into diseussion, proceeded, more pariieularly, to 
analyse the Act of Congress, of the tiih of July, 1798 (4 roL 
1(]0) in order to esla])]ish, 

I. 'That the President of t\ie United Slaves is authorised 
to cause alien enemies, residing in the United States, to be ap- 
jMchendcd, restrained, secured, and removed, without resort- 
ing to Hie judicial power. 

II. That the President's autjiorily had been exercised, 
in due form of law. 

ill. That from the return to the writ of Habeas Corpmi 
and the evidence exhibited by the Marshal of the District of 
Fcimsiilvaiiia, suilicient appeared to prevent the Chief Jus- 
tice, from taking further cognizance of the ease. 

1. The President of the United States is antliorised to 
cause Alien Enemies, residing in the United Slates, to be 
apprehended, restrained, secured, and removLcl, without re- 
sorting to tlie judicial power. 

1. The powers of war and peace are vested in the go- 
vernment of the Cnited States ; and, whatever may be the 
wisdom of confidiug tliose powers originally to the Legisia- 
tive Department, it is indispensable to tlie conduct and pro- 
secution of a war, once declared, t!iat the Executive Depait- 
uient should be authorised, to apply the political vigilance of 
the nation, as well as to use the whole of its physical forctg, 
against the machinations and the arms of the enemy. A 
state of war, renders the subjects of the adverse bel!igereat» 
enemies, wherever they are found ; and, aithougli the daties 
of hospitality and hunranity may require, that in different 
vsituations, they should be diiferently (reated ; yet, when those 
duties are performed, it seems a natural and a necessary re- 
sult, that the Executive Department should be eraployed, 1« 
guard against every possible danger, that may arise from 



C 22 ] 

alien enemies, at home, as well as abroad. The trcatnsent of 
eyery European government towards alien enemies, is, in- 
deed, a subject of Executive authority. The Legislature 
may prescribe general rules of conduct ; but it cannot pro- 
vide for all the emergencies, which the operations of war are 
calculated to produce. The Judicial power, proceeding with 
its characteristic publicity and deliberation, upon the strict 
rults of evidence, is incompetent, amidst the din of arms, to 
guard the nation against dangers, which threaten, as Avell as 
against dangers which exists — against dangers, which can 
only be averted, by the secrecy that watches, and the celerity 
that disarms. When, therefore, we find Congress engaged, 
in calling the departments of government into action, for the 
public safety, upon the event of war, it is reasonably to be 
expected that the Executive Department, which is alone en- 
doM'ed with the attributes of secrecy and celerity, w ill, also, be 
charged with tlie performance of those functions, for which 
such attributes are essentially required. 

2. The application of the Executive power, to the case 
of resident Alien Enemies, is neither a political, nor a moral, 
wrong. All Alien Enemy can claim none of the political 
rights of the Society ; and his claim upon the moral charac- 
ter of the Government, must be limited, by the paramount 
obligations of the Government, towards the people comniit- 
ted to its care. It is true, that, in common speech, those 
only are denominated «< Prisoners of war," who are forcibly 
captured ; but, surely, an Alien Enemy may become a Pri- 
soner, in consequence of the war, without being taken in bat- 
tle ; and wherever a resident Alien Enemy, by his own mis- 
conduct, or by the just precautions of the Government, is 
placed in actual confinement, it requires no great indulgence, 
in the use of language, to describe him, as a Prisoner of war. 
But from whatever cause an Alien Enemy is actually impri- 
soned, under the authority of the Government, public policy 
requires, that he should be securely kept ; and that the means 
of enlargement should be withheld, as much in the case of a 
Prisoner, for misconduct, or for precaution, as in the case of 
a Prisoner taken in battle. The privilege of the writ of 



r 

u 



23 ] 



TTaheas Corpus may he suspended, even with respect to the 
Citizens of the LTnited Sfates, when, in eases of rebellion, or 
invasion, the piihlie safety may require it; and it nsay be cor- 
rectly considered, as only in the nature of a suspension of the 
writ of llaheas Corpus, with respect to resident Alien Ene- 
mies, that the Act of Congress authorises the Executive 
Department, to exercise a summary jurisdiction over them, 
without the interposition of the judicial power, originally, 
or by way of appeal. 

3. Upon these premises, the exposition of the Act, en- 
titled "An Act respecting alien enemies,'' may be justly 
made, with an equal regard to the dictates of humanity, and 
to the law of the public safety. The first branch of the^^Vst 
section, declares, in the abstract, what was the condition of 
resident Alien Enemies, at the commencement of the war : 
" they were liable to be apprehended, restrained, and remov- 
" ed.'* But the proriso to the first section, qualifies that de- 
claration, by allowing to all resident Alien enemies, " who 
*' were not charged with actual hostility, or other crime 
" against the public safety," such reasonable time, *< as may 
<^ be consistent with the public safety, and according to the 
*' dictates of humanity and national hospitality," for the re- 
covery, disposal, and removal, of their goods and effects, " and 
" for their departure." The President is alone authorised to 
ascertain and declare, what shall be deemed the allowance of 
a reasonable time ; and a reasonable time being allowed, the 
promso has performed its office ; and all resident Alien Ene- 
mies, voluntarily remaining within the United States, are in- 
volved in that condition, which makes them " liable to be ap- 
prehended, restrained, secured, and removed." 

But by what authority are Alien Enemies to be appre- 
hended, restrained, secured, and removed ; since, the Act of 
Congress does not direct that they shall be so treated ; but 
only provides, that they may be so treated ? Independent of 
all verbal criticisms on the phraseology of the first section of 
the Act. it is clear, that, in relation to the jurisdiction esta- 
blished by that section, the President alone can legislate (if so 
it may be expressed) by his Proclamation, or other public 



[ 24 3 

act, as to the coiuiurt to he obscrvetl, on the purt ol" the Uni- 
ted States, towards resident Alien Kneinies : he alone can di- 
rect the manner and dfgnr of the restraint, to which they 
snail he subject: and in what cases, and upon what seeuriiy 
their residence shall he permitted ', or provide forihe rensov- 
al of those, w ho not beini; |>erinitted to reside in the United 
States, shall refuse, or neglect, to depart thevefi-oni : and lie 
alone can cst;ihlish any other regulations, v, hieh shall be foiiisd 
necessary 'm the pseniises, and for the iwddic safety. Jsow, 
it is obvious, that the President has not only the power to dc- 
..darethciaw of the conduct, to he observed towards resident 
Alien Enemies, but to direct the means for carrying the law 
into effect. If be may dii-cet the manner, as well as the de- 
gree of \'Cfiiviimi,m-aj he not direct, that for the disobedience 
of a. Public Notice, an Alien Knensy siiail be taken into the 
custody of tlie Marshal ? If he may direct the cases, in which 
;tn Alien Enemy may be permitted to reside >vithin the Uni- 
ted States, and npon what security ', may he not refuse to per- 
mit a residence, upon his own view of the public safety, ai- 
tljoiigh the Alien Enemy should not be chargeable with actu- 
■il hostility, nor be of a character and dej)Ovtn»ent to beget 
suspicion of misconduct ? If he may provide for the removal 
of Alien Enemies, who refuse, or neglect, lo depart from the 
United States, when ordered, may he not provide for their ar- 
rest and confinement by the Marshal, preparatory to their 
removal beyond the territory of the United States ; for Avhich 
removal, his warrant must be specifically obtained? If he may 
establish any other regulations, which he shall himself find 
necessary in the piemises, and for tiie public safety ; may he 
not establish the regulation, that all Alien Enemies, who re- 
fuse to depart from the vicinity of tide-water, shall be re- 
moved by the Marshal, or shall be taken into his custody for 
disobedience ? In short, if it is the duty of the President, un- 
der the sanction of tlie first section of the Act, to ascertain 
the hostile designs of the enemy ; to guard against the mis- 
conduct of resident Allen Enemies, of every denomination ; 
und to provide, from the secret, as well as the open, sources 
of Executive infurmutiou, against every danger, sudden, as 



C 25 3 

well as (listanf, wlucli threatens tlic public safety^ may tc 
not, Avitlioiit (liseiosing to piiblic viev^, the evidence and the 
motives of his condtict, adapt the means to the necessity of 
the occasion, upoti the responsibility, Avhich he owes, in com- 
mon with every public oCicer, to the Constitution and laws ? 

Thus, Uiejlrst section of the Act of Congress puts th« 
Executive Department into action, upon the general princi- 
ples of the law of war : and the authority of the President is 
applied to every possible case of precaution, as well as to 
every case of actual hostility, or misconduct. The policy of 
measures of State, belongs, properly to the consideration of 
the Legislative Department ; the expediency of cautionary 
measures, in the execution of all laws, and particularly of the 
laws of w ar, belongs properly to the consideration of the Ex- 
ecutive Department ; but there is still an ample field for the 
agency of the Judicial Department, in taking cognizance of 
complaints, upon subjects within the policy of the law, but 
not within the scope of the Executive measures, adopted to 
carry th^ law into effect. 

4. Hence, the second section of the Act of Congress puts the 
Judicial power into action, not as the means of carrying the Ex,- 
ecutivc authority, created by the first section, into effect, but 
as an auxiliary, to accomplish the general policy of the law. 
Would it not be an extraordinary employment of the Judicial 
power, to require, that a measure of State, and of war, pre- 
determined by the Executive Magistrate of the Union, upon 
secret information, and cogent motives, should be publicly 
submitted to the investigation of a Court, or of a single Judge, 
with power " after a full examination and hearing,'* to affirms, 
or reject, the measure, as the Court, or the Judge, should 
decide ? Yet, this must be the effect of the adverse doctrine. 
For instance : the President shall deem it necessary for the 
public safety, immediately to remove all Alien Enemies, from 
the vicinity of tide water, or from a particular station, me- 
naced by a fleet, or an army ; but he cannot remove one of 
them, unless a Court of criminal jurisdiction is in session, on 
the spot ; or a Judge of a Court of the United States, is at 
hvihd; nor even if he could comniaad the facility of such a 

D 



L ^6 3 

Court in scss^ion, or of such a Judge at hand, can tlx* reinov 
al be effected, until a complaint has been made in due fonu 
of law; until the case of every Alien Enemy has been fully 
examined and heard ; and until the Court, or Judge, has de- 
termined, upon the evidence, that sufficient cause appears, for 
the removal ! The bare statement of sueli a consequence, 
must prepare the mind to resist the construction from which 
it flows, if any other reasonable construction can be given to 
the Act of Congress. 

It is to be considered, therefore, tliat the Executive au- 
tliority, created by Uw first section of the Act of Congress^ 
does not reach every possible case of danger, to which the 
care of the Government ought to be extended. Alien Ene-^ 
mies, permitted to reside at large, within the district, at pla- 
ces far distant from the seat of the Federal Government, 
may, occasionally, become dangerous, by personal miscon- 
duct, to the public peace, or safety : Alien Enemies directed 
by the President's regulations to withdraAV from particular 
stations, may disobey', beyond tlie view of the Executive and 
jMinisterial officers of the Federal Government : Alien Ene- 
mies, may be subjected to various other restraints, by the 
President's regula tions, althougli no particular mode of pro- 
ceeding against them, for disobedience should be prescribed : 
In these, and in a great variety of other probable cases, the 
Courts of criminal jurisdiction, and the Federal Judges, in- 
dividually, are authorised to interfere, upon the complaint, 
not only of the Marshal, but of any member of the commu- 
nity'; not only upon an official call for judicial aid, but upon 
an original complaint, that an Alien Enemy is resident, and 
at large, within the district, to tlie danger of the public peace, 
or safety, and contrary to tiie tenor, or intent, of the regula- 
tions, which the President has established. W hatever the 
President may do, under the authority created by thejlrst 
section of the Act, the Courts of criminal jurisdiction, and 
the Federal Judges, individually, may do, under the authori- 
ty created by the second section : they are to hear and to ex- 
amine, and to decide, for themselves : they are not to enforce 
the President's orders according to his j udgmentj but to make 



C 27 ] 

Their own orders according to tlieir own judgment : And they 
may order an Alien Enemy, " resident and at large, to the dan- 
ger of the pithlic peace and safety, to be removed out of the 
territory of the United States, to give sureties for good be- 
ba\iour, or to be otherwise restrained, conformably to the 
President's Proclamation, or regulations ;" but they are to 
judge and decide, not the Executive Magistrate, as well whe- 
wher the danger to the public peace and safety exists, as 
whetlier the case is within the words and meaning of the Pre- 
sident's regulations, Sucli a course of proceeding would be 
correct and usual, upon complaints brought, originally, be- 
fore the judicial authority : but cases, Avhich the President 
has himself already decided, to be cases of danger, within 
the meaning of his regulations, can only be submitted, to 
♦' the full examination and hearing" of a Court, or a Judge^ 
in the nature of an appeal, for which the juridical histort- 
•f nations, can furnish no principle, or precedent. 

But does not the third section of the Act conclusively 
show, that the Executive authority, and the Judicial autho- 
rity, move upon a distinct impulse, in distinct spheres? It h 
there made the duty of the Marshal, to provide for removing 
out of the territory of the United States, Alien Enemies, who 
fey the President of the United States, or by order of a Court,, 
Judge or Justice, as aforesaid, shall be required to depart^ 
and to be removed as aforesaid :" And "for such removal, 
the Marshal shall have the warrant of the President of the 
United States, or of the Court, Judge, or Justice, ordering 
the same, as the case may be :" that is, if the removal is or- 
tJcred by the President, his Avarrant shall sanction it ; if it is 
ordered by a Court, or Judge, or Justice, a judicial warrant 
must be obtained. It will readily be seen, that for all re-' 
straints imposed on Alien Enemies within a district of tire 
United States, the Marshal's official duty, and powers, are 
sufficient, without any additional provision by law ; but for 
any ex-territorial agency, extending beyond the United States, 
ov even beyond a particular district, it was necessary to 
make it the duty of the Marshal of the district, iu which the 
Alien Enemy, is apprehended. " to provide for the removal ? 



C 28 3 

<* and to execute sueli order, by himself, or his deputicf5, or 
<' other discreet person, or pereons, to be eiii})]oYed by him." 
But whence does the President derive the power of ordering 
an Alien Enemy, to remove from the United States ? it is 
not granted by the third section of the Act, v.liere it is obvi- 
ously mentioned as a power previously e rented ; and, there- 
fore, it can only be derived from th(^ firs! section, which ere 
ates all the authority of the President, upon the subject, ir* 
tliejivst section, then, the President's power, to remove an 
A-lien Enemy from the United States, is given precisely iu 
the same manner, and in the same passage, as the power, 
« to apprehend, restrain, and secure," an Alien Enemy, with- 
in the territory of the United States : And when it is found, 
that the President is authoriser! to execute, upon his own w ar- 
rant, his order for the removal of an Alien Enemy, from the 
"United States, without resorting to any Court, Judge, or Jus- 
tice ; upon what principle of discrimination (if it is true, in 
jurisprudence, as it is in mathematics, that the greater always 
comprises the less) can it be asserted, that he is not authoris- 
ed to execute, upon his own directions to the Marshal, his 
orders, for apprehending, restraining, and securing, Alien 
Enemies, within the jurisdiction of the United Spates ? 

II. The President's authority has been exercised, in due 
form of law, 

1. The Constitution of the United States, contemplates 
the establishment of Executive Departments, to aid in the 
performance of the business of the Chief Executive Magis- 
trate ; and, accordingly, " The Department of State" (l vol. 359 
Ibid. M) " The Department of War" (1 vol 39) and " The 
« Department of the Navy" (i ^'oL 100) have been establish- 
ed. Each of these Departments acts, under the orders of the 
President, according to the respective objects of their insti- 
tution ; and the mode of acting differs, upon different occa- 
sions. But whatever is the adopted and customary form of 
the Department, in announcing its acts, must be considered, 
as the legitimate form of authentication, unless an Act of 
Congress, shall, in particular instances, prescribe another. 



L 29 j 

2. " The Department of State," is the appropriate orgajs 
!o eomniunitate, both at home asd abroad, the public acts of 
the President, in relation to affairs of State, which do not 
belon.t^j to military or naval duties ; and it is expressly pro. 
YJded, tliut the Secretary of State, *' shall conduct the busi- 
" ness of the said Department, in siieh manner as the Presi- 
" dent of the United States, shall, from time to time, order, 
« or instruct.'' (1 toL 359, §.1) The Acts of Congress 
provide for a Seal of the United States, and a seal of office, to 
be kept and aiiixe<l, on particular occasions, by the Secretary 
of State. The seal of the United Strtes, however, can only 
be affixed to civil commissions; and such other instruments, 
or acts, for which the President shall grant a special warrant. 
(1 vol, 41, §. 4) And the seal of office ig applied, to authen- 
ticate " all copies of records and papers in the said office," 
rendering them evidence, equally as the original record, or 
paper. It is usual with the President, to grant a warrant, 
for affixing the seal of the United States, to Proclamations 
of a general, solemn, character ; hut public notices, issued by 
his directions, in execution of particular duties, enjoined by 
Acts of Congress, or arising out of special circumstaneeSj 
are, usually, in the form of the Notices, which have issued, 
in relation to Alien Enemies, authenticated by the siyle of 
office, « The Department of State," which is as appropriate, 
and as exclusive in its use, as any name, that could be sub- 
joined. Such forms are well known, in the practice of the 
English, as well as of the American, Government. 

3. The Notices are public acts, because they issue from 
" the Department of State," and because they have been in- 
serted, in all the newspapers, which are employed by the Go- 
vernment, to give publicity to the laws. They are the public 
acts of the President, because they have issued from the 
*' Department of State," in the usual form ; because, the Pre- 
sident alone was competent to the performance of the acts ; 
because, under such circumstances, the publication of the 
acts, has never been disclaimed ; and because they have been, 
universally, recognized and enforced as the acts of the Presi- 
^^nU for a period of eighteen moath-s. But, after all, if it 



[ 30 3 

were possible to entertain a judicial (lou!)l on tlie subject, an 
opportunity would be judicially afforded, to add to the intrin- 
sic evidence, and the oath of the Marshal, the consummation 
of the proof, which exists at Washin^^ton, 

III. From the return to the Writ of Hiweas Corpus, and 
tlie evidence exhibited by the Marshal of the District of 
PennsylTania, sufficient appears to prevent the Chief Justice, 
from taking further cognizance of the case. 

1. In issuing a writ of Habeas Corpus, it is agreed, that 
a Judge should exercise the most liljeral discretion ; and upon 
the slightest doubt of the lawfulness of the alledged impri- 
sonment, he ought to institute an enquiry. But if, on the 
return, it appears, that tlie commitment was lawful ; or, that 
the ease itself, does not belong to the jurisdiction of the 
.Judge, who issued the writ, the Prisoner cannot be discharged. 
There is no injustice done to individuals ; there is no outrage 
committed upon personal liberty ; by restraining Judges, Fe- 
deral, or State, within the jurisdiction, which the law of the 
land assigns to them. If tlie Constitution of the United States, 
in the present instance, as in many otlicr instances, gives to 
the Federal Judiciary an exclusive jurisdiction, there is no 
clause of complaint ; nor is it any encroachment on the liberty, 
even of a Citizen, to say, that he shall not enjoy a variety of 
modes, for the redress of a grievance ; provided some known 
and effectual mode of redress, is given, for every grievance, 
either in the Federal, or the State, course of administering 
justice. To the national Government, all national questions 
are properly referred : and an Alien Enemy, has no pretence 
fur clamour, because he cannot be relieved by a State Judge, 
or a State Court, if a Federal Judge, or a Federal Court, is 
competent, to bestow all the relief, to which the law of na- 
tions, the law of treaties, and the law of the land, may entitle 
him. The refusal of the Chief .Tustice, to sustain the pre- 
sent Habeas Corpus, does not leave the Prisoner without re- 
medy, for any real trespass upon his rights ; since the Comets 
and Judges of the United States have an unquestionable ju- 
risdiction upon the whole ease. 



2. But a sin^^le Sta(e Judge, has not a jiirisdicti<m, upon 
the whole case ; and, there fore, lie should be particularly 
cautious, in exercising jurisdiction, upon any part of it. Sup- 
pose, for a moment, that ihe form of placing the Prisoner in 
custody, is defective, shall it he said, that the Chief Justice 
inust discharge him? For, although the cause for the impri- 
sonment, is amply sufficient, yet of the cause, the Chief Jus- 
tice, under the mtcond section of the Act of Congress, can 
take no cognizance : the jurisdiction, in that respect, is ex- 
clusively vested in the Federal Courts, in the State Courts, 
having criminal jurisdiction, and in the Uidges t»f the Federal 
Courts, individually. Then, the proposition Avill he, that, 
upon this Habeas Corpus, the Chief Justice may dittcharge, 
for want of form ; but that he cannot commitf for matter of 
substance ; and the authority to act in the same way (the au- 
thority of issuing and deciding upon writs of Habeas Corpus)^ . 
resides in every President and Associate Judge, of every 
Court of Common Pleas, in every County of the State, with- 
out a power of revisal, before any other tribunal. Federal, or 
State ! Under such circumstances, the Federal authority, 
upon questions of war and peace ; the Federal responsibility, 
on the regulation and coatroul of xiiien Eneuues j must be- 
come worse than a mockeiy. 

3. The Federal Government, possessing all the powers 
of war and peace, including the regulation of the conduct, to 
be observed towards resident Alien Enemies, meant, by the 
Act of Congress, to legislate upon the whole subject of Alien 
Enemies ; and to declare all the jurisdiction, which the Fede- 
ral and State judicial authorities might exercise. A State judi- 
cial authority may fairly, however, issue a writ of Habeas 
Corpus, to enquire into the cause of an imprisonment, in a 
doubtful case 5 but whence does a State judicial authority de- 
rive its sanction, for enquiring into, and, more especially, for 
deciding upon the cause of an imprisonment, like the pre- 
sent, clearly appearing upon the commitment and return ? 
For, it appears that Charles Lockingtou, an xilien Enemy, has 
been taken into the custody of the Marshal, in obedience to 
the orders of the President of the United States, for a breach 



I. ^^ J 

of the regulations, which the President liad e^•ilMis]led, under 
the authority ol' the Act of Congress. Can a single Judge 
of Pennsylvankh discharge Charles Lockington, the Alien 
Enemy, upon speculations, whether all the forms, of which 
the case is susceptible, have been pursued by the President, 
by the Secretary of Slate, by the Comnjissary General of 
Prisoners, and by the Marshal ? An affirmative answer would 
annihilate all the energy of the Govemnier.t, lor the pur- 
poses of war. As to the Marshal's Cerrifieate to the Keeper 
of the Prison, it has been iniproperly termed an usurpation 
of judicial power. The State of PennsyU-ania, in conjpli- 
ance with the request of Congress, has aecoinmoditted the 
United States, with the use of ber Prisons, for the safe-keep- 
ing of persons, arrested under Iheir authority. The Prison- 
ers of the Marsh.al are placed, therefore, in the Prison, not 
by an exercise of judicial power, but just as tlie Sheriff places 
his Prisoners there j and, in the present instance, the Mar- 
shal's Certificate is given to tli« Keeper of the Prison, not as 
the warrant for taking Cliarlcs Lockhigton into custody (the 
warrant for that act proceeds from the President) but as a 
voucher, for holding him, in safe keeping, and, virtually, in 
the custody of the Marshal. 

4. The Prisoner is, then, an Alien Enemy, confined 
under the authority of the Constitution and I^aws of the 
United States, and of the regulations established by the Pre- 
sident : in other words, he is a Prisoner, in consequence of 
the war ; can he be discharged by any single Judge of the 
State, who is authorised to issue a writ of Habeas Corpus'} 
Prisoners of Avar, in the strict use of the denomination, can- 
not have the benefit of a writ of Habeas Corpus ^ nay, they 
cannot be removed, from the place of confinement, upon u 
Habeas Corpus, to give testimony in a cause, upon trial. 2 
jBwrr. 765. 2 Black. Eep. 1S2. Doug, 403. If, therefore, the 
authority to decide, when resident Alien Enemies, ought to 
be ♦' apprehended, restrained, secured, and removed," belongs 
to the President, does not the principle of law, which denies 
to a Prisoner of war, the privilege of the writ of Habeas 
Corpus, equally deny the privilege, to a resident Alien Enenay? 



L 33 1 

imprisoned hy tl^e President, in consequence of the war? On. 
th'i^ point, however, the case vests not upon argument, but 
upon jjidieial auOiorliy : and Chief Justiee Kejtt (supported, 
in a great dei^ree, by Chief Judge J\'ichoJson, of Maryland) 
has expressly declared, from the Bench of the Supreme Court 
of JS^ezv-Fork, that in a ease, like the present, upon principle, 
«♦ it would not only be unfit for the Court to interpose, so 
♦* lonsj as llie Courts and Judges of the United States hava 
*< ample and perfect jurisdiction, over the whole subject mat- 
*' ter ; but that it would, also, be exercising power without 
*' any jurisdiction ;" and, thereiore, he was of opinion that 
a writ of Haheas Corpus ought to be denied. 9 Johns. Rep» 
239. 2 Law Journ. 192. 1 Johns. Cases, 136„ 

The Chief Justice continued the case under advisement, 
till Monday, the 22d day of November, 1813, when he deli- 
vered the following opinion. 

TiLGHMAN, Chief Justice : From the return to this writ 
of Ea.heas Corpus, and the evidence, which has been pro- 
duced, it appears, that Charles Lockington, who is a Subject 
of tlie British King, came into the United States, before the 
declaration of war, and has never been naturalized. His bu- 
siness was connected with commerce ; and on the 18th of 
July, 1812, he reported himself to John Smith, Marshal of 
the District of Pennsylvania, as an Alien, and British Sul^- 
ject. On the 19th of March 1813, he applied, as an AJien 
Enemy, for the Marshal's passport, to repair to Lancaster, 
which was granted; and, at his own request, afterwards 
changed to Heading j m pursuance of an order issued from 
the office of the Secretary of State, by which all Alien Ene- 
mies (with certain exceptions, not including the case of Mr. 
Loekington) were directed to retire, to a place above forty 
miles from tide water, to be designated by the Marshal. On 
the 9th of the present month, the Marshal found Mr. Lock- 
• ington in this City, in violation of the order above mentioned; 
upon which he required him to retire to Reading. This 
being refused by Mr. Lockingtoji, the Marshal took him into 

E 



C S4 ] 

]sis custody, anil plaoiid him, for safe keeping, in the Debtor's 
Apartment, of the Prison of the City and County of Fh'ila- 
ddjjhia. until he eould he conveyed, oi* woukl consent to re- 
tire, to Reading, or shouhl he discharged by due course of 
law. The reason assigned by Jjockingtoiif for coming from 
Ueadhig to Fhiladd'phia, was the v.ant of money to subsist in 
Heading; and he olfercd to return tliither, if the Marshal 
\vould furnish him with money. War having been declared 
by the Congress of the United States, on the 18th day of June 
1812, proclamation of that event Mas made by the President 
on the day following. On the 7th &a\ of July, in the same 
year, a noliee was issued front the Department of State, and 
V>!iblished in tliiose newspapers, in Avhich the laws of tht; 
United States are published, by which all British Subjects 
were required, to make report of themselves to the I^Iarshals 
of the districts, in w Inch tliey resided ; and at the same time 
the several Marshals were directed to cause the laws, which 
relate to Alien Enemies, to be published, in order tliat suck 
persons might be informed of the situation, in which they 
stood. Those laws were, accordingly, published. On the 
23d of February 1813, an order was issued from the Depart- 
ment of State, and published in the newspapers, by which 
*' Alien Enemies, residing, or being, within forty miles ot 
*< tide water. Mere required forthwith to apply to the Mar- 
" shals of the States, or Territories, in which they, respec- 
*' lively, resided, for passports, to retire to such places, be- 
*< yond that distance from tide water, as should be designated 
«' by the Marshals ;" subject to certain exceptions, not af- 
fecting the present ease. Jit the same time the several Mar- 
shals of the United States received instructions from the De- 
partment of State, to take into custody, and convey to the 
places assigned to them, all persons to whom the said requi- 
sition was applicable, and who did not immediately conform 
to it. On the 15th of April 1813, the several Marshals were 
informed, by a notice from the Department of State, that 
the President had appointed John Mason Esq. Commissary 
General for Prisoners of AVar, '* including the Superin- 
« tendance of Alien Enemies ;■■ and that, in future, all let- 



C 35 ] 

tors and documents on those subjects, were to be addressed to 
that gs^ntJenian ; and all instructions from him, in riiatioji 
to the same, were to be obeyed ; unless otherwise directed, 
from the Department of State. On the 31st of May 1813, a 
circular letter, sij^ned by John Mason, was addressed to the 
several Marshals of the United States, and published in the 
newspapers. This letter was dated " Office of Commissary 
*' General of Prisoners, Washington, May 31 1813," and is 
expressed in the following form : " The President, being de- 
** sirous of delining, more particularly, the treatment of 
** Alien Enemies, and of extending as much indulgence to 
** them, as may be eonipati!)le, with the precautions made 
*' net-essary, by the present state of things, directs, that, in 
'« regard to such as may be wivhin your District, you will be 
«* governed by the following rules. You will cause to be re- 
** moved, as heretofore prescribed, if not already done, undep 
«♦ the former orders from the Department of State, all who 
** are not females, or under eighteen years of age, who are 
*' not labourers, mechanics, or manufacturers, arrived in the 
" country previous to the declaration of war, and actually em- 
** ployed in their several vocations : subject, however, to the 
*< following Diodifications." Then follow the modifications, 
none of whieh apply to Mr. Lockinglon. These are all the 
liicts of any importance on the present question. 

It has been contended, that the orders issued from the 
public offices, are not to be considered, as the acts of the 
President ; and that, if they are his acts, they are not au- 
thorised by law. Both these objections shall be considered ; 
but I shall first advert to the point, introduced in the sugges- 
tion filed by the Marshal, which goes to the jurisdiction of a 
State Judge, in cases like the present. It is supposed that 
the State Judges have no authority to issue a writ of Habeas 
Corpus, because the power of declaring war, being vested in 
the Congress of the United States, all matters appertaining to 
that subject, must be under their controul ; that Congress, 
if it had pleased them, might have considered Alien Ene- 
mies, as Prisoners of War, who are not entitled to the benefit 
of a writ of Habeas Corpus j and, finally, that as the laws of 



6 1 



the United States liave ejiven to the StaU' Judges, a ceriuin 
juris(Hetion, ^vith respect to Alien EiKinies (wliieh I shall 
have occasion to mention hereafter) but have not given to 
them authority, to interpose by a writ of Habeas Corpus, that 
"writ ought not to be issued. In answer to these suggestions, 
it is to be observed, that the authority of the State Judges, in 
cases of Habeas Corpus, emanates from the several states, and 
not from the United States. In order to destroy their juris- 
dietioi>, therefore, it is necessai'y to shew, not that the United 
States have given them jurisdiction ^ but that Congress pos- 
sess, and have exercised, the power of taking away that ju- 
risdiction, which the States have vested in their own Judees. 
Our Act of Assembly directs, that, in all cases, „ where any 
" person, not being committed, or detained, for any criminal, 
" or supposed criminal matter, shall be confined, or re- 
" strained, of his liberty, under any colour or pretence 
<• wiaatsoever," he shall be entitled to a writ of Habeas Cor- 
piis. Now, it is no answer to this law, to say, that, being 
made, before the present Constitution of the United States, 
was established, it could not be intended to apply to cases ari- 
sing under the Constitution. The people of Peimsylvaiila 
still remain Citizens of the Commonwealth, as well as of the 
United States ; and it is of as much importance to them, to 
be relieved from unlawful imprisonment, under colour of au- 
thority derived from the United States, as from any other 
imprisonment. When the present Federal Constitution was 
adopted, the people were not easy until tlsey obtained an 
amendment, declaring that the powers not delegated to the 
United States, by the Constitution, nor prohibited by it to the 
States, were reserved to the States respectively, or to the 
people. A writ of Habeas Corpus must, therefore, be issued, 
in all cases, where the right to issue it, has not been given 
up to the United States. That this right has not been given 
up, was my opinion, delivered in the case of Olmstead, where 
I assigned reasons, which I shall not now repeat. But that 
is not all. It is a principle, well established, that even in 
cases, where Congress might assume an exclusive jurisdic- 
tion, the authority of the States remains, until such a juris- 



[ 37 1 

ilicfioii is assiiMird. Tiurc are many instances, in Avhich the 
powers of (lie United States, are suffered io lie dormant: 
ijueli as the power of estabiislnng uniform laws on the subject 
of lKinkn!]>teics; and, wliile tlie power remains dormant, the 
several States regulate the subject. In subjects, also, within 
the jurisdiction of Congress, when they do legislate, the au- 
thority of (he States is taken away, only so far as the law of 
the United States declares. This is exemplified in the Act 
estuS)iishing the Judicial Courts of the United States where, 
it will he found, tliat, in some instances, the Courts of the 
United States are vested v.ith an exclusive jurisdiction; hut 
in many more they ha\e jurisdiction concurrent with the 
Courts of the several States. And, although it is true, that, 
bv the terms of the Act, the Courts of the United States have 
only a concurrent jurisdiction, yet, I apprehend the construc- 
tion would be the same, if the express terms had been omit- 
ted. By the lith section of the same Act, power is given to 
the Judges of the United States to grant writs of Habeas 
Corpus, for the '• purpose of an enquiry into the cause of 
*' commitment; provided that they shall, in no case, extend 
'« to prisoners in gaol, unless where they are in custody, 
«* under, or by colour, of the authority of the United States, 
" or committed for ti-ial, before some Court of the same, or 
« are necessary to be brought into Court to testify." Kow, 
if it had been intended to exclude tJie State Judges, this is 
the place, in which we might expect to find evidence of suck 
intention : for, the subject was full in the mind of the Legis- 
lature, as appears by the care, Avith which they restrained 
their own Judges, from interfering with oommitmcnts, not 
under the authority of the United States, 

The judicial power of the United States extends to all 
cases in law or equity, arising under the Constitution, the 
laws of the United States, and the treaties made under their 
authority. Supposing that Congress had the right to assume 
an exclusive jurisdiction, ia all cases founded immediately on 
these subjects, the exercise of it, would be intolerably griev- 
ous, without a great increase of Courts and Judges : And, 
even then, it would often happen, that the State Courts would 



C S8 3 . 

}iav0 to decide on the Constitution, Laws, and Treaties of the 
United States, on questions arising, eoHateraily, in causes 
Avitliin their jurisdiction. Still the authoiity of the United 
States may be preserved, by retaining, as they have retained, 
an appeal to their OAvn courts. But it seems to be the general 
opinion, that from a decision on a Habeas Corpus, no appeal, 
or writ of Error, lies; and, thus, points of vital importance 
to the United States, may be determined by State Judges, 
\*ithout an opportunity of revision. This may, certainly, be 
a very serious evil ; but it does not appear to be without 
remedy. For, although, by the general principles of law, an 
appeal, or writ of Error, might not lie ,• yet, the subject 
being within the power of Congress, tliey may regulate it as 
they please. As to an attempt, to take away from the State 
Courts altogether, the right of issuing a Wiit of Habeas 
Corpus, in any case, where a man pretends to justil'y an im- 
prisonment, under the authority of the Uuiled States; — 
whenever the subject shall be brought before Congress, it 
will be found to be attended with very great if not insupera- 
ble difliculties. 

I have said thus much on the point of jiirisdiction (al- 
though I consider it as having been long settled, and acted 
upon, by the Supreme Court of this State) because some 
persons of high standing, in other States, for whose opinions 
J entertain the most sincere respect, have expressed doubts 
cm the subject. It is a matter deserving the greatest consi- 
deration, in which the people of the different States are deeply 
interested. The inconvenience of clashing opinions, between 
Federal and State Judges, may sometimes be felt ; but when 
I consider the situation of a Pennsylvanian, imprisoned un- 
lawfully, by colour of a pretended authority from the United 
States, on the banks of the Ohio, or the shore of Lake Erie, 
with only one Federal Judge to whom he can apply, and that 
Judge in the city of Philadelphia, I feel as little inclination, 
as I have right, to surrender the authority of the Common- 
wealth. 

But there is another olijeetion to this Habeas Corpus, 
applieabic equally to the Judges of the States, and of the Unit- 



i 39 ] 

Slates : it is, liiat Mr. Lockinglon is in the situation of a ]>ri- 
sonev of war. If he be so, lie is not entitled to a privelege, 
Avlilcli never eould have been intended, foe persons of tliat de- 
sei'iption. A prisonor of war is snbject to the law of war; 
lie is bi'oiir^lit among us by foece ; and his interests were ne- 
ver, in any nnmner, blended with tliose of the people of tliis 
connti y. He has no mnnieipal rights to expect from us. %Vc 
gave him no invitation, and promised him no proteetion. Kis 
object was to injure us ; and we bring him hither solely for 
safe keeping. Far different is the case of a great body of 
people, who, although now placed in the situation of enemies, 
by events over which they had no eontroul, yet, in their 
hearts, may bear no enmity to the United Slates : nay, who 
may even prefer this country to their native soil. Many of 
them came among us, with a view of sharing our fortunes* 
Our laws held out invitations ; they were suffered to acquire 
property, personal and real ; we permitted them to swear, 
that they intended to renounce their native sovereign, and be- 
come fellow citizens with us. Many, it is true, came merely 
on business, without such intent, and may be really ini- 
mical. But even they had tliat implied promise, which civi- 
lized nations have long been supposed to make, that, in case 
of sudden war, there should be permission to depart in a rea- 
sonable time, without injury to person, or property. I am far 
from denying, however, that the condition of these people is 
to be decided, not by a reference to the usual courtesy of na- 
tions, but by our own laws. Congress had the power of le- 
gislating on the subject : they have exercised that power : 
and their acts are paramount to all foreign customs. It is 
these acts, which we are now to consider, and it will be found, 
that they are such, as the most civilized nation need not blush 
to avow. They preserve a sacred regard for Treaties j and. 
in eases where no Treaty exists, they vest the President of 
the United States with full powers, to be exercised " aceord- 
" ing to the dictates of humanity, and national hospitality ;" 
not forgetting, however, a due regard to the public safety. It 
has lately been decided, by the Supreme Court of J^ew Fork^ 
m the case of Clark vs; Money (10 Johns. 59.) that Britis. 



L 4.0 J 

Aliens, resifling m Iha United States, so ^ar from being con- 
sidered as prisoners of war, may sue, and be sued, as in time 
of peace. 

The Act respecting" Alien Enemies, vas passed on the 
sixth of July one tliousand seven hundred and ninety eight. 
In considering it, I slsall not pursue tiie wide range, which 
was taken in tiie argument of iliis case. In fixing its true 
construction, it is of no impostance, under wluit adiuinistration 
it was enacted; by whom it Avas brought Ibrward ; or by 
v/hom advocated, or opposed, on its piissage. It is the law 
of the land ; and, being so, it becomes the duty of every indi- 
vidual to obey, and of every Court to enforce ol)cdience. 

It beffins by enactingr, that when war is dcclai'ed, or in- 
vasion by a foreign nation perpetrated, attempted, or thea- 
tened, and the President of the United States, sliall have 
made public proclamation of the event " all natives, citizens, 
'' denizens, or subjects, of the hostile nation, or (Jovernment, 
<' being males of the age of fourteen years and upwards, w ho 
" shall be within the United States, and not actually natura- 
<< lizi'd, shall be liable to be apprehended, restrained, secured 
*« and removed as Alien Enemies." Here is a broad proposi- 
tion, standing as a foundation, for isummary proceedings, 
against persons, who are declared to be in the situation of 
Alien Enemies. I do not consider, as has been contended by 
Mr. J>oc/v'm^f om's counsel, that the apprehending, restrainingf 
and scc.tu'ing, here mentioned, are to be intended solely for the 
purpose ot'remoTal out of ilie United States. It is a provision 
for the public safety ; which may require, that the Alien 
should not be remored, but kept in the country under proper 
restraints; and the nature and degree of these restraints, in 
cases where there has been no tnisbeliaviour, may depend, in 
some measure, on the treatment, wliich tlie hostile Govern- 
ment gives to citizens of tlie United States, who may chance 
to be within its power. The Act, then proceeds to declare, 
that " the President of tlie United States shall be authorised, 
** in any event as aforesaid, by his Proclamation thereof, or 
*' other public Act, to direct the conduct to be observed on 
*' (he part of the United States, towards the Alieas, who shall 



C 41 1 

«• hecoir.c liahlc as aforessdd ; tlie manner ?.nd degree of tlie 
*• resfraiiit, to whitih they shall be subject ; and in what eases 
*' and upon what seenrity, their residence shall be permitted ; 
" and to provide for the removal of those, "vvho, not being 
*• pcrmitied to reside within the United States, shall refuse, 
" or neglect, to depaj-t therefrom ; and to establish any other 
" regulations, whieli shall be found necessary in the premi- 
" ses, and for the public safety.'* Then follows a proviso, 
for securing tlie observance of treaties, which is not material 
in this case; because, at the time of the declaration of war, 
there was no treaty, regulating the subject, in existence, be- 
tween the United States and Great Britain. 

In the second section of the Act it is enacted. 

" That after any proclamation shall be made as afore- 
« said, it shall be tJje duty of the several Courts of the Uni- 
"ted States, and of each State, having criminal jurisdiction, 
«' and of the several Judges and Justices of the Courts of the 
" United States, and they shall be, and are hereby respective- 
<* ly, authorised upon complaint, against any Alien Enemy, or 
«< Alien Enemies, as aforesaid, who shall be resident and at 
"large within such jurisdiction or district, to the danger of 
« the public peace or safety, and contrary to the tenor or in- 
<' tent of such Proclamation, or other regulations which the 
" President of the United States shall and may establish i» 
<* the premises, to cause such Alien or Aliens to be duly ap- 
" prehended and convened before such Court, Judge or Jus- 
** tiee ; and after a full examination and hearing on such 
« complaint, and sufficient cause therefor appearing, shall and 
« may order such Alien or Aliens, to be removed out of the 
« territory of the United States, or to give sureties of their 
♦< good behaviour, or to be otherwise restrained, conformably 
** to the Proclamation or regulations which shall and may be 
" established as aforesaid, and may imprison, or otherwise 
<« secure such Alien or Aliens, until the order which shall 
"and may be made, as aforesaid, shall be performed." 

It cannot be doubted, but that the provision in the first 
section, considered without reference to the second, authori- 

F 



[ 4'-2 3 

ses the President (o establish a regtihi<Ii»ii, (hatiill ATn'ii Erie- 
iDies of a cei'tain deseripfion, sliull retire immediately to a 
plaee to be appointed by the jMaeslra! ; and that, iu ease of 
non-eomplianee, the jMarsiial shall remove them. Hut the 
second section, havinis; authorised certain Courts andJu<Igcb, 
upon complaints made a,:^ainst Alien Knenjies, to have Iheui 
apprehended, and brought before (hem ; and, after hearing;, 
to make such order as may be necessary, for carrying the 
regulations oftlie President into c i^ect ; there is not wanting 
strong colour for an ai'gument, that the ouK manner of exc- 
ciitiitgthe regnhitions, is by complaint to a Court, or Judge, 
'i'liis is a point uell worthy of serious considt-ration. 1 have 
co'isidcred it attentively; and I shall give the reasons, which 
have induced uic to conclude, that, imtwithstanding the se- 
cond section, the President was authorised, to make an order 
for the removal of the Alien Enemy by the Marshal, in the 
iirst instance. It is never to be forgotten, that the main object 
of the law is, to provide for the safety of tlse Country, from 
enemies who are suftered to remain vithin it. In oider t(t 
effect this safety, it mijrht be necessary to act on sudden 
emergencies. It is well known, that the United States are 
exposed to great danger, in a Avar w ith an enemy, who com- 
mands the sea. Bounded by the Atlantic Ocean to a great 
extent, with numerous bays and navigable rivers, penetrating 
the very heart of the Country ; there is no knovi'ig whea,or 
where, the attack may be made. "Witliout incurring the 
charge, then, of undue severity, prudence might require, that 
Alien Enemies, residing in large cities, should be removed, 
with more expedition, than the foru)aiities of law admit. 
The President being best acquainted with the danger to be 
apprehended, is best able to Judge of the emergency, which 
might render such measures necessary. Accordingly, we 
find, that the powers vested in Lim, are expressed in the most 
comprehensive terms. He is to make any regulations, w hich 
lie jiiay think necessary for the public safety , so far as con- 
cerns the treatment of Alien Enemies. It is certain, that 
these powers create a most extensive influence, which is sub- 
ject to great abuse : but tliat was a matter for the coiisidcra- 



[ 43 ] 

lion of tliose, who made the law, and must have no weiglit, 
^vkh the Jiul.^r, who expounds il. The truth is, that, among 
the many evils of war, it is not the least, to a people, who 
wish to preserve their freedom, that, from neeessity, the hands 
of the KxeeiUive power, must he made strong, or the safety 
of the nation w ill he endangered. 

But, it may be asked, what is the use of the provision in 
tlie seeond section, concerning Courts and Judges, if the regu- 
lations of the Piesident may he executed, without resorting 
to them ? 1 lie answer is, that the use is great. In the fust 
place, where the JMarshal is ordered to make the removal, 
he is at liherty to apply to the Judges, and there may arise ea- 
ses, in which he will iind it prudent, to strengthen himself by 
the judicial authority. But besides, many regulations may 
he made, which contain no order for the :Marshal to act, or 
which may direct liim to proceed by way of complaint to the 
Judges. If the regulation in qtiestion had simply been, that 
Alien Enemies should retire to a place to be appointed by the 
Marshal, any citizen might have complained of an Alien En- 
emy, who declined to comply ; and a Judge might have made, 
and enforced an order for his removal. There may be vari- 
ous regulations for the general conduct of Alien Enemies, 
w ithout pointing out the mode of carrying them into eftect :^ 
and, in all such eases, the Courts may take cognizance of 
them. There may be regulations, which barely order, that 
certain things shall be done, or shall not bedone, without de- 
fining the penalty in case of disobedience. In such cases, the 
Judges to whom complaint is made, are vested with a consi- 
derable discretion. They may, according to the nature of 
the case, either direct the Alien Enemy to he removed out of 
the United States, or to give security for his good behaviour, 
or to be imprisoned, nniil the order of the President is com- 
plied with. It would he a waste of time to point out all the 
uses of this provision, respecting the power of Courts and 
Judges, To those, who reflect on the subject, many more, 
than 1 have mentioned, will suggest themselves* It is wor- 
thy of remark, that in the third section of the Act, it appears, 
thut the Prtsidest may, by his warrant directed to the IMar- 



C 44 ] 

glial, order liim to appreliensl any Alien Encjv.y, ^m] remove 
liim out of the Territory of the Uniti'd Slates. Now, it is 
difficult to conceive a reason, why tlie President sljonid he 
authorised to remove any Alien Enemy out of Hit Cnvninu 
withosit assigning a cause, and yet tliat lie should not he prr- 
uiitted to direct, that those, of a certain description, should 
repair to a certain place ivilhin the United Stules, and in case 
of a refusal, that the ^larshal should remove them. The 
pai'tiuclar reason assigned hy Mr. Loclxingtoii, for not com- 
plying with the order of the President, I cannot hut very 
much regret. But, although it ahsolves him fj-omlhe charge 
of ohstinate and perverse disobedience, yet, it can have no ef- 
fect on my judgment, as it is a suhject, on which I have no 
power to act. I am not without hopes, however, tliat this 
puhlie discussion may bring to the mind, both of our own and 
the British Government, a matter, wjiich seems not to have 
been attended to ; that is to say ; that persons, detained in a 
foreign lairJ, cut off from tlieir funds, and without the oppor- 
tunity of pursuing their usual occupations, may be involved 
in distress, which demands relief. 

But, supposing the President had poAver to make the re- 
gulation under which the Marshal has acted, it is denied, 
that he ever did make it. The Act of Congress requires, 
that the President should establish regulations, hy isis Pro- 
clamation, ov other jjuhUc act. He has made no Proclamation ; 
but has he not made a puhlie act '? The first order was issued 
from the Department of State, although it does not appear to 
be signed by the Secretary of State, nor is the name of the 
President mentioned in it. The Attorney for the United 
States, says, that the orders of the President are usually 
communicated in this form. If the matter rested on this no- 
tification, I should be somewhat at a loss what to think of it. 
The President could not transfer his power to tlve Secretary 
of State ; and as there is no mention of bis name, some evi- 
dence might be necessary, to show that it was really his or- 
der, issued fj'om the Department of State. But the order is- 
sued f r(jm the Commissary General of Prisoners, puts the 
matter out of doubt ; for, the regulations tV.cre established. 



C 45 ] 

^vliifli refer to, and Tcdopl, tlie former erdirs fi'Din (lie De- 
partment of State, are expressly declared to be tlie act of the 
Presivleut, altliougli tliey are not signed by Siim, but by t]ie 
Commissary. This is siiffieient to satisfy me. Beinj^ pub- 
Jislied as the orders of the President, sij^ned by an officer of 
high trust, arii "aoer disavowed, I consider them as the juih- 
lic Jicts of the Frcsident. 

I must a.dd a few Avords, with respect to the return to 
this Habeas Corpus. The writ is directed to Joseph Cor- 
man, keeper of the Debtor's Apartment of the Prison of the 
Cily-and County of Phihvdclpliia, who made return, that he 
netained Mr. LocMnglon hy virtue of a written order from 
John SmilJi, Esq. Marshal of this District, by which he was 
commanded to keep the said Mv. Lockingtorif who had violat- 
ed the orders of tlie President, &c. until he should be dis- 
charged by law. Connected with this return, I must take the 
su,a;gestion presented by tlie Marslml, and verified by bis 
oath ; by which it^appears, that he placed Mr. Lock'mgton 
in the Debtor's Apartment, until he could be conveyed, or 
Avould voluntarily go, to Reading. The JMarshal's order to 
the keeper of the prison has, at first view, somewhat the air 
of a judicial act, for which he, certainly, can have no autho- 
rity. But the peculiar cii'cumstances of the United States, 
with regard to prisons, will serve to explain the matter. 
They have no prisons of their own, and make use of the State 
prisons, by permission of the several States. Although the 
Marshal held Mr. Lock'mgton in custody, in a ministerial 
capacity, it might be necessary for him, to give the keeper 
of the prison, some document, to authorise Ins detaining him. 
So that I consider Mr Lockington as, in fact, in custody of 
the Marshal. Being of opinion that the Marshal had a right 
to take him into custody, and place him in the Debtor's apart- 
ment, for safe keeping, until he could conveniently be remov- 
ed to Beading, I must order, that Charles Lockington, be re- 
manded to the custody of the keeper of the Debtor's Apart- 
ment. 

The Prisoner was, accordingly, remanded. 



AFPENBIX : 

Containing the Acts of Congress, and the jjiiblic Acts and Re.- 
galationsqfthe Fvesidcnt of the United States,res]iectingAli-: 
en. Enemies, ivith Extracts from the Official Instructions 
to the Marshals of the Bistricts and Territories of the Unit- 
ed States, rvhich xvere referred to, in Lockington's case. 

No. 1. 

AN ACT 

Declaring War betnveen the United Kingdom of Great Britain and Ireland and the Depttl' 
dencies thereof, and the United States of America and their ferritoriei. 
BE it enacted by the Senate and Hotise of Representatives oftlie United Statei of Amtri- 
ca in Congress assembled. That WAR be and the same is heaeby declared to exist be- 
tween the United Kingdom of Great Britain and Ireland and the dependencies thereof, 
apd the United States of America and their Territories ; and that the President of the 
United States be and he is hereby authorised to use the whole land and naval force of 
the Ur.ited States, to carry the same into effect, and to issue to private armed vessels of the 
United States, commissions or letters of marque and general reprisal, in such form as he 
shall think proper, and under the seal of the United btates, against the vessels, goods, and 
effects of the Government of the same United Kingdom of Great Britain and Ireland, and 
of the subjects thereof, 

H. CLAT, 
Speaker of the House of Representatives- 
WM. H. CRAWFORD, 
President of the Senate pro timpQtt. 

Jtme 13, 1812. Approved, JAMES MADISON, 

No 2. 

By the President of the United States, of America. 
A PROCLAMATION. 
WHEREAS the Congress of the United States, by virtue of the Constituted Autiie- 
rity vested in them, have declared by their Act, bearing date the eighteenth day of th» 
present month, that War exists between the United Kingdom of Great Britain and Ire- 
land, and the dependenciei thereof, and the United States of America and their TerritO= 
ries; Now, therefore, I, JAMES MADISON, President of the United States of America^, 
do hereby proclaim the same to all whom it may concern : and I do specially enjoin on 
all persons holding offices, civil or military, under the authority of the United States , 
that they be vigilant and zealous, in discharging the duties respectively mcident thereto: 
And 1 do moreover exhort all the good people of the United States, as they love their 
country ; as they value the precious heritage derived from the virtue and valor of their fa- 
thers ; aj they feel the wrongs which have forced on them the last resort of injured na- 
tions ; and as they consult the best means, under the blessing of Divine Providence, of 
abridging its calamities ; that they exert themselves in preserving order, in promoting 
concord, in maintaining ths aathorlty and the efficacy of the lavrs, and in supporting and 



11 

invig'orHling all the measures which may be adopted by the Constituted Authorities, for 
obtaining a speedy^ a just, and an honorable veace. 

IN testimony ivhereof 1 have hereunto set my hand, and 
caused the sea! of the United States to be affixed 
to these presents. 
(bEAL.) DONR at the City of Washington, the nineteenth day of 

June, one thousand eight hundred and twelve, and 
of the Independence of the Uiated States, the thir. 
ty-sixth, 
(Signed) JAMES MADISON. 

liy the President, 

-(Signed) JAMRS MONROE, 

Secretary of State. 

No. 3, 

AN ACI' licsptcting Alien Kneviies. 

Sect. 1. BR it enacted by the Senate and House of liepreientativei of the United States of 
America, in Cungress assembled. That whenever there shall be declared war between the 
United States and any foreign nation or government, or any invasion or predatory incur- 
sion, shall be perpetrated, attempted, or threatened against the Territory of the Unite4 
ytates, by any foreign nation or government, and the President of the United States shall 
make public procl;>mation of the event, all natives, citizens, denizens, or subjects of the 
hostile nation or government, being males of the age of fourteen years and upwards, who 
shall be within the United States, and not actually naturalized, shall be liable to be ap- 
prehended, restrained, secured and removed, as alien enemies. And the President of the 
United States shall be, and he is hereby authorised, in any event, as aforesaid, by his pro- 
clamation thereof, or other public act, to direct the conduct to be observed, on the part 
of the United States, towards the aliens who shall become liable, as aforesaid ; the mm- 
iier and degree of the restraint to which they shall be subject, and in what cases, and up- 
on what security their residejice shall be permitted, and to provide for the removal of 
those, who, not being permitted to reside within the United States, shall refuse or ne- 
glect to depart therefrom ; and to establish any other regulations, which shall be found 
necessary in the premises and for the public safety : Provided, That aliens resident with- 
in the United States, who shall become liable as enemies, in the manner aforesaid, and 
who shall be not chargeable with actual hostility, or other crime against the public safety, 
sjiall be allowed for the discovery, disposal, and removal of their goods and effects, and 
for their departure, the full time which is, or shall be stipulated by any treaty, where 
any shall have been between the United States, and the hostile nation or government, of 
which they shall be natives, citizens, denizens or subjects : and where no such treaty shall 
hfive existed, the President of the United States may ascertain and declare such reasona- 
ble time as may be consistent v/ith the public safety, and according to the dictates of hu- 
manity and national hospitality. 

Sect. 2. jind be it father enacted, That after any proclamation shill be made as afor;^- 
said, it shall be the duty of the several courts of the United States, and of each State, 
having criminal jnrisdiction, and of the several Judges and Justices of the Courts of the 
United States, and they shall be, and are hereby respectively, authorised upon complaint, 
against any alien enemy, or alien enemies, as aforesaid, who shall be resident and at large 
within such jurisdiction or district, to the danger of the publJz peace or safety, and contrary 
to the tenor or intent of such proclamation, or other regulations which the President of the 
United States shall and nuy establish in the premises, to cause such alien or aliens to be 



Hi 

duly apprehended and convened before such Court, Tudgeor Justice ; and after a full ex- 
amination and hearing on such complaint, and sufficient cause therefor appearing, shall 
and may order such alien, or aliens, to be removed out of the Territory of the United 
States, or to give sureties of their good behiviour, or to be otherwise restrained, confor- 
mably to the proclamation or regulations which shall and may he established as aforesaid, 
and may imprison, or otherwise secure such alien or aliens, until the order which shall 
and may be made, as aforesaid, shall be performed. 

Sect, 3. Jnd be it further enacted. That it shall be the duty of the Marshal of the 
district in which any alien enemy shall be apprehended, who by the President of the Unit- 
ed States, or by order of any Court, Judge, or Justice, as aforesaid, shall be required to 
depart, and to be removed, as aforesaid, to provide therefor, and to execute such order, by 
himself or his deputy, or other discreet person or persons, to be employed by him, by 
causing a removal of such alien out of the Territory of the United States : and for such 
removal, the Marshal shall have the warrant of the President of the United States, or of 
the Court, Judge, or Justice ordering the same, as the case may be. 

JONATHAN DAYTON. 
Speaker of the Home of Representatives. 
THEODORE SEDGWICK, 
President of the Senate, pro tempore. 
Approved, July s, 1798 : JOHN ADAMS, 

President of tlie United States. 

No. 4. 

AN ACT 

^nppletnentary to the act, entitled "An Act respecting alien enemiei." 
Be it enacted by the Senate and House of Representatives of the United States of Amt' 
'ica in Congress assembled, That nothing in the pi-oviso contained in the act, entitled " Aa 
act respecting alien enemies," approved on the sixth day of July, one thousand sevcB 
hundred and ninety-eight, shall be extended or construed to extend to any treaty, or to 
any article of any treaty, which shall have expired, or which shall not be in force, «t th» 
time when the Proclajuation of the I^rasident shall issue. 

H. CLAY, 
Speaker of the House of Representatives. 
WM. H. CRAWFORD, 
President of the Senate pro temptrt, 
July 6, 1812 . Approved. JAMES MADISON. 

No. 5. 

AN ACT 

'fo prohibit American vessels from proceeding to or trading 'with the enemies of the Vniiei 
States and for other purposes. (Passed the 6th of July, 1812. 11 vol. 299.) 
Sect. 6, And be it further enacted. That the President of the United States be, and 
he is hereby, authorised to give, at any time within six months after the passage of thi» 
act, passports for the safe transportation of any ship, or other property, belonging to Bri" 
tish subjects, and which is now within the limits of the United States. 

No. 6. 

[Notice published in " The Democratic Press/' of the 10th of July, 1812.] 

Department of State, July 7th, 1813. 
NOTICE. 
All British subjects within the United States, are required forthwith to report to the 
marshals (or to the persons to be appointed by them) of the respective states or territo^ 



IV 

iries •within which they may reside, their names, their age, the time they have been in the 
United States, the persons composing their families, the places of their risdfnc;. .^iid 
their occupations or pursuits, and whether, and at what time, they h^ve made the apv'ica- 
tion to the courts required by law, as preparatory to their naturalization ; and the mir- 
shals, respectively, are to make to tlie Department of Slate returns of all such British 
subjects, with the above circumstances annexed to their names. 

No. 7. 

[Notice published in "The Democratic Press," of the 22u October, 1812.] 

United States, •> 

?cnnsylvania District, 3 

Marshal's Office, 10th 'July, 1812, 

In obedience to the instructions from the Department of State, 
NOTICE IS HEREBY GIVEN, 
That all British subjects, residing within the district of Pennsylvania, are required 
forthwith to report themselves to me, at my office, in the city of Philadelphia, or to one 
of the persons in the annexed schedule, ni.irked (A) by me duly appointed, in the toun- 
ties of Pennsylvania respectively to receive such report. Although it is presumed, by the 
government of the United States, that all British s--bjects will act with propriety, and 
obey the laws which relate to them, as alien enemies ; yet, it is rendered my duty, if any 
of them should disappoint this reasonable expectation, or should neglect to make the re- 
port above specified, to communicate the same to the Department of State, that the Pre- 
sident may be enabled to act as the circumstances of the case shall require, and that full 
information may be possessed, upon the important subject of this notice. 

JOHN SMITH, Marshal. 

(A.) 
■WiHiam B. Irish, Pittsburgh, Allegheny County. 
James Weston, Erie, Erie County. 
David Reilly, Bedford, Bedford County. 
■Hichard Parker, Carlisle, Cumberland County. 
Edward Davis, Chuichtown, Lancaster County, 
Thomas Burnside, Bellefonte, Centre County. 
Josiah Wright, Wilkesbarre, Luzerne County. 
Isaac Lyman, Coudersport, in the County of Potter. 
Arnold Hunter, Smithport, in the county of M'Kean. 
James M'Cluney, Washington, Washington County. 
Samuel Jack, Greensburg, Westmoreland County. 
George Manypenny, Union Town, Fayette County. 
Henry Donnel, Williamsport, Lycoming County. 
John Hetrick. Chambersburg, Franklin County. 
Matthew Ridgeway, Milford, Wayne County. 
George Marks, Reading, Berks County, 
General Abraham Horn, Easton, Northampton County. 
Rees Lloyd, Cambria, Cambria County. 

Having received additional instructions from the Department of State, and having 
well-grounded reason to believe that there are a number of Alien Enemies (British sub- 
jects) who have neglected to conform to the foregoing orders, particularly a number 
who have arrived since the declaration of war, I have to request the assistance of all the 
citizens of this district to be aiding and enforcing the laws in the premises, by giving 



^ 



iiif'orni:4tioii to tilts office, or the persons appointed by me, of all British subjects, residing 
in their respective neighbourhoods. 

JOHN SMITH, Manhal. 

Marshal'i Oficc, rhiladelphia, Oct. 22, 1812. 

No. 8. 

[Notice published in " The Democratic Pres?," of the 11th of February, 1813.] 

NOTICE. 

Department of State, Feb. 6, 1813. 

Alien enemies arriving within the limits of the United States, from foreign countries, 
are, immediately on their arrival, to report themselves to the marshal of the United 
States, or to his deputy for the district within which they may be landed. 

No alien enemy can here ifter proceed from a port or place within one district of the 
United States, to a port or place within another district of tht: same, by land or water, 
without a special passport from the marshal or from the collector of the customs, as the 
c;ise may be. 

Alien enemies, permitted to travel from one district of the United States to another 
district thereof, are forthwith, on their arrival, to report themselves to the marshal, to 
whom they are to exhibit their passports. 

The imrshals and the collectors of the customs of the several districts of the United 
States, are particularly charged with the execution of the provisions of this notification. 

No. g. 
[Notice published in " The Democratic Press," of the 3d of March, 1813.] 

NOTICE. 

Department of State, Feb. 23, 1813. 
Alien enemies, residing or being within forty miles of tide water, are required forth- ■' j 

with to apply to the marshals of the states or territories in which they respectively are, p>i 

for passports to retire to such places, beyond that distance from tide water, as mny be ' 

designated by the marshals. This regulation, however, is not to be put iu force without 
special notice against such alien enemies, not engaged in commerce, as were settled pre- 
viously to the declaration of war in their present abode, or are there pursuing some re- 
gular and lawful occupation, unconnected with commerce, and who obtain, monthly, 
from the marshal of the district in which they reside, permission to remain where they 
are. 

No. 10. 

[Notice published in " The Democratic Press,*' of the 19th of July, 1813.] 

RESPECTING ALIENS. 

Circular to the Marshals of the United States. 

Office of the Commissary GeneraUof Prisoners, IVashington, May 31, 1813. 

Sir, 

The President, desirous of defining more particularly the treatment of Alien Ene- 
mies, and of extending as much indulgence to them, as may be compatible with the pre- 
cautions made necessary by the present state of things, directs, that, in regard to such af 1 
■may be within your district, you will be governed by the following rules : ' 

You will cause to be removed, as heretofore prescribed, if not already done, under 
former orders from the Department of State, all who are not females, or under eighteeii 
years of age, or who are not labourers, mechanics, or manufacturers, arrived in the coun- 
try previous to the declaration of war, and actually employed in their several vocations, 
sttbject, however, to the following modiiication : 



3 



VI 

Persoiis> of wlntever calling, except in cases where you may have knowledge of 
improper conduct, who have, according to law, declared their intention to become citi- 
zens of the United States, at least six months before ttie declaration of war, and in ad- 
dition, are married to natives, or are owners of real property, or, if in commerce, in sach 
commerce as is exclusively internal, are to be permitted to remain at, or, if removed, to 
return to, their usual places of resideiioe ; provided such residence be not at or in the 
iiTimediate vicinity of a town or post on navigable water, where military works are 
inaiiit^iined, or a body of troops are stationed. 

You will take cai-e to call for and be governed by proper proofs of the facts alled^ed 
in each case ; and as to all persons so permitted to return, you are requested to observe 
she same jireeautions aad restrictions as are used towards alien enemies not removed ; 
and you are not to construe the relaxation hereby authorised as any bar to a future re* 
nioval or apprehension of persons relieved by it, should general circumstances require oi 
particular cases make necessary such a measure. 

You will make to tills office weekly returns of all the cases coming to your know- 
kdge of persons, of the class designated to remain, or to return, who by misconduct 
have forfeited their claim to such indulgeuce', and of the course you have taken as to 
each: as also of the persons of the class removed, or designated to be removed, who, 
from extraordinary circumstances of hardship, and from their character and deportment 
may, in your opinion, be entitled to particular consideration, setting forth all the clr- 
i-umstances on which each claim is founded. 

I have the honour to be, S:c. 

J. MASON. 

No. i:. 

i.XTRACTS FROM THE OFFICIAL INSTRUCTIONS OF THE MARSH.ALii. 

1. From the Secretary of State, llth July, 1812. The Secretary refers to the Notice 
of the 7th of July, 1812, issued from the Department of State, requiring Alien Enemies to 
rtporc themselves to the Marshals; and then proceeds as follows:— "As all British sub- 
" jects, by becoming Alien Enemies, have essentially changed their relation to the United 
" States, and have new duties to perform, it is proper that th?y should be made ac- 
'•■ quainted with these duties. To give them the requisite information, you are requested 
" to cause the laws, which relate to the subject to be published forthwith, in the several 
" gazettes, which publish the laws of the United States in your state. In like manner 
■' you will give public notice of the persons whom you may appoint to assist you, in tak- 
••" ing the reports to be made to you. Although it is presumed, that all the British sub- 
'■ jects will act with propriety, and obey the law, which relates to them, as alien enemies, 
" yet should any of them disappoint this reasonable expectation, it v/ill be your duty to 
i' make an early and special report of the improper conduct of such person to this Depart- 
" inent, that the President may be enabled to diuharge the duty imposed ok him, under such 
" circumstances. Should any of them fail to report themselves, you will, also, on being 
«• apprised thereof, communicate the same to this Department, as such omission will be 
" evidence of great misconduct in the party." 

2. From the Secretary of State, 13th of October, 1812.— "In case of the arrival ot 
•'■ Alien Enemies within your District from abroad, you are to take measures, to cause 
" them to report themselves to you; and to designate for them particular places of resi- 
"dence, at least thirty miles distant from tide-water, to the limits of which designatipj| 
" they are to be confined." 

3. From fhe Secretary of State, 29th of October, 1312.—" In answer to your letter of 
" the 22d instant, relative to the meaning of that part of your instructions of the 33tb ol 



Vll 

•• this month, concerning the aiTitral ol Alien Knemies within your District from abroad, 
" r hnve to inform you, that you have very accur:.tely construed the intentions if the go 
" vernmcnt, in extending it to all arrivals of persons of that description, subsequent to 

" the war." 

4. From ihe Secretary cf State, 6th February, 1813.—" You are requested not to per- 
•' mit Alien Knemies, in future, to proceed from any city, town, or place, within your 
" district, to another city, town, or place, of the United States, by land, unless you are 
" acquainted with the nature of rhcir pursuits, know them to have a reputation for pro 
" bity, and can con/ide in their good intentions towards the United States. Each indivi- 
" dual of this description, who has previously reported himself to you, and whom you 
" ifnay authorise to depart, is to be furnished with a passport, printed forms of which I 
" now transmit to you, to be used for that purpose. On application of any Alien Enemy, 

(for a certificate, that ha has previously and duly reported Ijiraself to you, you are to 
/' give him one, for the information of the collector of the customs, who is, also, i.i, 
• structed on this head, with regard to Alien enemies proceeding by water." 

5. From the Secretary of Slate, 23d of Febi uary, 1813.—" You will herewith receive 
<• a copy of a printed notice, to Alien Enemies, issued from ihe Department of State tliis 
" day. As it sufficiently explains its object, it is only necessary to remirk, that all 
" t)ii/ie, to luhum it lias reference, engaged in commerce, ■wh.o do not immediately ci.nfcrm to 
" the requiiition, are to be taken into custody, and conveyed to the place aaigned to them, 
•' unless special circumstances require indulgence. In such cases, reports are to be made 
•' to this Department : And that all those of other occupations, whom it may not be 
•' deemed proper, to suffer to remain within the prescribed distance of tide-water, be 
" immediately notified to repair to the interior of the country, to which they are en« 
" joined to confine themselves- This letter is accompanied by two kinds of blank pass 
" ports, correspontUng with the provisions of the notice, which you will fill up and sign»- 
" agreeably to the tenor of each-" j 

6. From the Secretary of State, 12th of March, 1813.— "The regulations concerning -^' i, 
" Aliens, established in conformity with the Notice from this Department of the 23d ult. 

" and your instructions of the same date, are to be enforced ; and the persons designated 
" for removal are immediately to repair to the places assigned them for residence. In 
" peculiar and extraordinary cases of hardship, and where the character and deportment 
" of the parties entitle them to particular consideration, you will refer the question of 
" indulgence to this Department, setting forth all the circumstances, on which the clain: 
" is foundtd. But in no instance is the removal cf the individual to be delayed for an an- 
" siuer from Washington. You will make an accurate report of the places of residence. 
" which you may assign to each Alien, with a description of his person." 

7. Froiri the Secretary of Slate, 15th of April, 1813.-" flie President having appointed 
" Jfihn Mason, Esq. of Georgetoiun, in the District of Ctlumhia, Commissary General for 
" I'risonei-sof war, including the superinlendanry of Alien Enemies, you are requested, in 
" future, to address all letters and documents, on those subjects, to that gentleman ; and 
" to obey all instructions from him, in relation to the same, unless otherwise directed 
'• from this department." 

8. Prom the Commissary General of Prisoners. fi.c,3lit of May; 1813. A circular Ist- .« 
ter of instructions, respecting alien enemies, inserted in this Appendix, Article 10- 

9. From the Commissary General of Prisoners, &c. 19th August, 1813. " It by no 

" means follows, that, because an Alien Enemy is more distant from the navigable waters. 

'■ than the line, drawn by the general Instructions from the Department of State, beyond 

' which to remove persons of that description, by v/ay of precaution ; that he is to be 

" permitted to remain, under reprehensible conduct, undisturbed. In the ease of an Alien 



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Vlil 

" Enemy, who shsU so fi-r abuse the indulfenffe and h.">5pitilify of t'oe Courtry,iri time lui 
" war with his nation, is f o declare his ndhf-rence to the enemy, anri disposition to suppet t 
"their Interest, or who shall uttempl to distrast the confidetict reposed in their govern- 
" ment, by our citiiens: you '-'.'iU, finttaking cJis to estabJss'i th: fact, place him imm!.di- 
" ately in close ccnfinemcnt." 

lO. FrOmJ/i? Commiisary Gensral of Prisoners, &c. i2th Novembeiv 1813. " It having 
" been'found; that the lenity shown to Alien JB'nenues, remaining in the country, has 
•' been frequently abused by ih.il class, to whom a residence remote from tide water has 
•' been assigned; and that some have gone off, cUndestintly, to the enemy ; it has bjcn 
"determined, to guar^' against Si^oh nbuses, in future, by rf quiring an honorable eng'i.^e- 
" ment, from all sach persons, to be of gor.d co.iducr, and to observe the llmUs presciibs d 
"to them. You are, therefoie, ir.struottd, A> orier of the rrssident, with the least possible 
"delay, after the receipt of this !fct:,;r, to offer for execiitiLr;, to every Alien Enemy 
•within your district, who has been, or may be heireafter, removed • om t'le vi:init-y (.A' 
•'■tide-water, a parole of honor, in iht form inclobed ; and, if refused, /' pla :f fxery pf - 
"sun so refusing, -ujith'/ut distinction, finliiuitlt, in dust cun^ir.smint. Since this cisiiUij., 
'^' when understood, be considered a haish meisure, by any, but those of evil de.':ign, 'ou. 
•'are rtiiuested to explaiti, to all concerned, why it has become He;ssiavy, ' 

Form of the P.ii'olc. 
"^VHEREAS, I 3" Alien 

and a British su,>;-c.', described at the foot hereof, h->ve been dlrectsd 'y »h? r.- :;ident 
cf the United Ststesof Amcr:-a. to rep-ijr to a certain dist,*nce from t'.Je water ; and the 
Marshal of the district of 
has heretofore granted me a passport to proceed to 

witkin the district aforesaid ; and leave as been gi a'.-ed n c to reside 
in aforf.r -id, and to go from time to 

t'Kio, at my own discretion, to a distance therefrom not exceeU i; five mi es, upon coii- 
fiition that I give my parole of honor, not to witlidraw from the 'lounds o prescribed, 
■without leave for that purpose from the said Marshal ; that I will beh-ve wi h due respect 
♦o the laws aud authorities of this country ; and also, that I will not, dinctly or indi- 
rectly, carry on a eonespondence -with any of the enemies of the Unite ^ ; rates, or re- 
ceive, or write any letter or letters to or from any Alien Enemy whomsoever, but through 
the hinds of the said Marshal, in oid-jr that they may be read and approved by hini : I 
do hereby declare that I have given my parole of honor accordingly, andthil 1 will kev^' 
it inviolably. 

11. From the Commissary General of Prisoners, &c, 12th of November, 1813 « fhe 
"cTurse ym have taken, as to Charles Lockington, is entirely correct. The re;ulations of 
"ifu Government must be enforced; and, if rigour i^made necessary by the conattct of 
« persons, who have constantly experienced only mildness, at its hands, rigoir mcst he 
•• ti-sed. It will he proper to offer to Mr. Lockington, the alternative cf the P;Tole, thii- 
« day forwarded to you ; and if he does not accept it, to hold him in cjrtfir.ement* 

12. From the Commissary General of Prisoners, &c. i7th of November, 1813. " With rcfe- 
«»rence to the Circular Letter addressed to you from this office, on the 12th insi. relative 
" to the treatment of AH%n Enemies (to which your particular and i.-nmediate attention 
"is requested) you will be pleased to understand, that no person, who is impris-^ned, ur.- 
••d«r the order conveyed in that letter, is to be liberated, and admitted to parol,-, bat bj' 
"special order from this office." 



• l-his letter was received by the Marsha, during the discussion on the Haifas C^r- 
puu and tile Parole publicly tendered to Mr. Lockington. Mr. Hare, his Counsel, ceclined 
acceyting it ; but he said that his CUent, if permitted, would leave the Vniied St-tet- 



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